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As filed with the Securities and Exchange Commission on July 2, 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): JUNE 26, 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 June 26, 1996 between Excel Realty
Trust, Inc. and Smith Barney Inc.
1.02 Terms Agreement dated June 26, 1996 between Excel Realty Trust,
Inc. and Smith Barney Inc.
2
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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: July 1, 1996 EXCEL REALTY TRUST, INC.
By: /s/ Richard B. Muir
------------------------------
Richard B. Muir
Executive Vice President and Secretary
3
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. PAGE
- ----------- ----
<S> <C> <C>
1.01 Underwriting Agreement dated June 26, 1996 between Excel
Realty Trust, Inc. and Smith Barney Inc. ................. 5
1.02 Terms Agreement dated June 26, 1996 between Excel Realty
Trust, Inc. and Smith Barney Inc. ........................ 51
</TABLE>
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EXHIBIT 1.01
ANNEX A
EXCEL REALTY TRUST, INC.
(a Maryland corporation)
Common Stock, Warrants to Purchase Common Stock,
Preferred Stock and Depositary Shares
UNDERWRITING AGREEMENT
June 26, 1996
SMITH BARNEY INC.
388 Greenwich Street
New York, New York 10013
Dear Sirs:
Excel Realty Trust, Inc., a Maryland corporation (the "Company"),
proposes to issue and sell shares of Common Stock, $.01 par value (the "Common
Stock"), or warrants to purchase a number of shares of Common Stock (the "Common
Stock Warrants"), or both, or shares of Preferred Stock, $.01 par value (the
"Preferred Shares"), or warrants to purchase a number of Preferred Shares (the
"Preferred Share Warrants"), or both, or interests in Preferred Shares in the
form of depositary shares (the "Depositary Shares") represented by depositary
receipts (the "Depositary Receipts"), or warrants to purchase a number of
Depositary Shares (the "Depositary Share Warrants"), or both, from time to time,
in one or more offerings on terms to be determined at the time of sale. The
Common Stock Warrants, Preferred Share Warrants and Depositary Share Warrants
(collectively, the "Warrants") will be issued pursuant to one or more Warrant
Agreements (each, a "Warrant Agreement") between the Company and a warrant agent
specified therein (the "Warrant Agent"). Each series of Preferred Shares may
vary as to the specific number of shares, title, stated value, liquidation
preference, issuance price, ranking, dividend rate or rates (or method of
calculation), dividend payment dates, redemption provisions, sinking fund
requirements, conversion or exchange provisions and any other variable terms as
set forth in the applicable articles supplementary (each, the "Articles
Supplementary") relating to such Preferred Shares. As used herein,
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"Securities" shall mean the Common Stock, the Common Stock Warrants, the
Preferred Shares, the Preferred Share Warrants, the Depositary Shares, the
Depositary Share Warrants and the Depositary Receipts; and "Warrant Securities"
shall mean the Common Stock, Preferred Shares and Depositary Shares issuable
upon exercise of the Warrants. As used herein, "you" and "your," unless the
context otherwise requires, shall mean the parties to whom this Agreement is
addressed together with the other parties, if any, identified in the applicable
Terms Agreement (as hereinafter defined) as additional co-managers with respect
to Underwritten Securities (as hereinafter defined) purchased pursuant thereto.
Whenever the Company determines to make an offering of Securities
through you or through an underwriting syndicate managed by you, the Company
will enter into an agreement (the "Terms Agreement") providing for the sale of
such Securities (the "Underwritten Securities") to, and the purchase and
offering thereof by, you and such other underwriters, if any, selected by you as
have authorized you to enter into such Terms Agreement on their behalf (the
"Underwriters," which term shall include you whether acting alone in the sale of
the Underwritten Securities or as a member of an underwriting syndicate and any
Underwriter substituted pursuant to Section 10 hereof). The Terms Agreement
relating to the offering of Underwritten Securities shall specify the number of
Underwritten Securities of each class or series to be initially issued (the
"Initial Underwritten Securities"), including the number of Warrants, if any,
whether the Initial Underwritten Securities shall be in the form of Depositary
Shares and the fractional amount of Preferred Shares represented by each
Depositary Share, the names of the Underwriters participating in such offering
(subject to substitution as provided in Section 10 hereof), the number of
Initial Underwritten Securities which each such Underwriter severally agrees to
purchase, the names of such of you or such other Underwriters acting as
co-managers, if any, in connection with such offering, the price at which the
Initial Underwritten Securities are to be purchased by the Underwriters from the
Company, the initial public offering price, the time, date and place of delivery
and payment, any delayed delivery arrangements and any other variable terms of
the Initial Underwritten Securities (including, but not limited to, current
ratings (in the case of Preferred Shares and Depositary Shares only),
designations, liquidation preferences, conversion or exchange provisions,
redemption provisions and sinking fund requirements and the terms of the Warrant
Securities and the terms, prices and dates upon which such Warrant Securities
may be purchased).
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In addition, each Terms Agreement shall specify whether the Company has agreed
to grant to the Underwriters an option to purchase additional Underwritten
Securities to cover over-allotments, if any, and the number of Underwritten
Securities subject to such option (the "Option Securities"). As used herein, the
term "Underwritten Securities" shall include the Initial Underwritten Securities
and all or any portion of the Option Securities agreed to be purchased by the
Underwriters as provided herein, if any. The Terms Agreement, which shall be
substantially in the form of Exhibit A hereto, may take the form of an exchange
of any standard form of written telecommunication between you and the Company.
Each offering of Underwritten Securities through you or through an underwriting
syndicate managed by you will be governed by this Agreement, as supplemented by
the applicable Terms Agreement.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 33-59195) for the
registration of the Securities and Warrant Securities and certain of the
Company's debt securities, under the Securities Act of 1933, as amended (the
"1933 Act"), and the offering thereof from time to time in accordance with Rule
415 of the rules and regulations of the Commission under the 1933 Act (the "1933
Act Regulations"), and the Company has filed such amendments thereto as may have
been required prior to the execution of the applicable Terms Agreement. Such
registration statement (as amended, if applicable) has been declared effective
by the Commission. Such registration statement and the prospectus constituting a
part thereof, in each case as supplemented by a prospectus supplement relating
to the offering of Underwritten Securities (the "Prospectus Supplement"),
including in each case all documents incorporated therein by reference, and the
information, if any, deemed to be a part thereof pursuant to Rule 430A(b) or
Rule 434 of the rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations"), as from time to time amended or supplemented pursuant
to the 1933 Act, the Securities Exchange Act of 1934, as amended (the "1934
Act") or otherwise, are collectively referred to herein as the "Registration
Statement" and the "Prospectus," respectively; provided, however, that a
Prospectus Supplement shall be deemed to have supplemented the Prospectus only
with respect to the offering of Underwritten Securities to which it relates. All
references in this Agreement to financial statements and schedules and other
information which is "contained," "included" or "stated" in the Registration
Statement or the Prospectus (and all other references of like import) shall be
deemed to mean and include all such
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financial statements and schedules and other information which is or is deemed
to be incorporated by reference in the Registration Statement or the Prospectus,
as the case may be; and all references in this Agreement to amendments or
supplements to the Registration Statement or the Prospectus shall be deemed to
mean and include the filing of any document under the 1934 Act which is or is
deemed to be incorporated by reference in the Registration Statement or the
Prospectus, as the case may be. If the Company elects to rely on Rule 434 under
the 1933 Act Regulations, all references to the Prospectus shall be deemed to
include, without limitation, the form of prospectus and the abbreviated term
sheet, taken together, provided to the Underwriters by the Company in reliance
on Rule 434 under the 1933 Act (the "Rule 434 Prospectus"). If the Company files
a registration statement to register a portion of the Securities and relies on
Rule 462(b) for such registration statement to become effective upon filing with
the Commission (the "Rule 462 Registration Statement"), then any reference to
"Registration Statement" herein shall be deemed to be to both the registration
statement referred to above (No. 33-59195) and the Rule 462 Registration
Statement, as each such registration statement may be amended pursuant to the
1933 Act.
Section 1. Representations and Warranties.
(a) The Company represents and warrants to you, as of the date
hereof, and to you and each other Underwriter named in the applicable Terms
Agreement, as of the date thereof (in each case, a "Representation Date"), as
follows:
(i) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective, complied, and as of each
Representation Date will comply, in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations; the
Registration Statement, at the time the Registration Statement became
effective, did not, and as of each Registration Date, will not, contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; the Prospectus as of the date hereof, does not, and as of
each Representation Date will not, include an 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; provided, however, that the representations and
warranties in this subsection shall not apply to
<PAGE> 5
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statements in or omissions from the Registration Statement or Prospectus
made in reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter through you expressly for use in the
Registration Statement or Prospectus.
(ii) The accountants who certified the financial statements and
supporting schedules included or incorporated by reference in the
Registration Statement and the Prospectus are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations; and
there have been no disagreements with any accountants or "reportable
events" (as defined in Item 304 of Regulation S-K promulgated by the
Commission) required to be disclosed in the Prospectus or elsewhere
pursuant to such Item 304.
(iii) The historical financial statements of the Company included or
incorporated by reference in the Registration Statement and the Prospectus
present fairly the financial position of the Company and its consolidated
subsidiaries, as at the dates indicated and the results of operations for
the periods specified; except as otherwise stated in the Registration
Statement and the Prospectus, said financial statements have been prepared
in conformity with generally accepted accounting principles applied on a
consistent basis and comply with the applicable accounting requirements of
the 1933 Act (including, without limitation, Rule 3-14 of Regulation S-X
promulgated by the Commission), and all adjustments necessary for a fair
presentation of the results for such periods have been made; the
supporting schedules included or incorporated by reference in the
Registration Statement present fairly the information required to be
stated therein; and the selected financial data (both historical and pro
forma) included or incorporated by reference in the Registration Statement
and the Prospectus present fairly the information shown therein and have
been compiled on a basis consistent with the related financial statements
presented therein.
(iv) The historical summaries of revenue and certain operating
expenses included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the revenue and those
operating expenses included in such summaries of the properties related
thereto for the periods specified in conformity with generally accepted
accounting principles; the pro forma consolidated
<PAGE> 6
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financial statements included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the pro forma
financial position of the Company and its consolidated subsidiaries as of
the dates indicated and the results of operations for the periods
specified; and such pro forma financial statements have been prepared in
accordance with generally accepted accounting principles applied on a
basis consistent with the audited financial statements of the Company
included or incorporated by reference in the Registration Statement and
the Prospectus, the assumptions on which such pro forma financial
statements have been prepared are reasonable and are set forth in the
notes thereto, and such pro forma financial statements have been prepared,
and the pro forma adjustments set forth therein have been applied, in
accordance with the applicable accounting requirements of the 1933 Act and
the 1933 Act Regulations (including, without limitation, Regulation S-X
promulgated by the Commission), and such pro forma adjustments have been
properly applied to the historical amounts in the compilation of such
statements.
(v) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, (B)
there have been no transactions entered into by the Company or any of its
subsidiaries other than those in the ordinary course of business, which
are material with respect to the Company and its subsidiaries considered
as one enterprise, and (C) except for regular monthly or quarterly
dividends on the Company's Common Stock or dividends declared, paid or
made in accordance with the terms of any series of the Company's preferred
stock, there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock.
(vi) 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
<PAGE> 7
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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; and the Articles Supplementary
relating to the Preferred Shares or Depositary Shares, if applicable, will
be in full force and effect as of each Representation Date.
(vii) 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
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, 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 except that all of the partnership intrests 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.
(viii) Each of the partnership and joint venture agreements to which
the Company or any of its subsidiaries is a
<PAGE> 8
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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.
(ix) The authorized, issued and outstanding capital stock of the
Company is in all material respects as set forth in the Prospectus 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); and such shares of capital stock have been duly authorized
and validly issued and are fully paid and non-assessable and are not
subject to preemptive or other similar rights.
(x) The Underwritten Securities being sold pursuant to this
Agreement and the applicable Terms Agreement and, if applicable, the
deposit of the Preferred Shares in accordance with the provisions of a
Deposit Agreement (each, a "Deposit Agreement"), among the Company, the
financial institution specified therein (the "Depositary") and the holders
of the Depositary Receipts issued thereunder, have, as of each
Representation Date, been duly authorized by the Company and such
Underwritten Securities have been duly authorized for issuance and sale
pursuant to this Agreement and such Terms Agreement and such Underwritten
Securities, when issued and delivered by the Company pursuant to this
Agreement against payment of the consideration set forth in such Terms
Agreement or any
<PAGE> 9
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Delayed Delivery Contract (as hereinafter defined), will be validly
issued, fully paid and non-assessable, and the issuance of such
Underwritten Securities will not be subject to preemtive or other similar
rights; the Preferred Shares, if applicable, conform to the provisions of
the Articles Supplementary; and the Underwritten Securities being sold
pursuant to the applicable Terms Agreement conform in all material
respects to all statements relating thereto contained in the Prospectus.
(xi) If applicable, the Warrants have been duly authorized and, when
issued and delivered pursuant to this Agreement and the applicable Terms
Agreement and countersigned by the Warrant Agent as provided in the
Warrant Agreement, will have been duly executed, countersigned, issued and
delivered and will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Warrant Agreement under
which they are to be issued; and the issuance of the Warrant Securities
upon exercise of the Warrants will not be subject to preemptive or other
similar rights; and the Warrants conform in all material respects to all
statements relating thereto contained in the Prospectus.
(xii) If applicable, the shares of Common Stock issuable upon
conversion of any of the Preferred Shares or the Depositary Shares, or the
excercise of Warrant Securities, will have been duly and validly
authorized and reserved for issuance upon such conversion or exercise of
the Warrants as the case may be, by all necessary corporate action and
such shares, when issued upon such conversion or exercise, will be duly
authorized and validly issued and will be fully paid and non-assessable,
and the issuance of such shares upon such conversion or exercise will not
be subject to preemptive or other similar rights; the shares of Common
Stock issuable upon conversion of any of the Preferred Shares or the
Depositary Shares, or the exercise of the Warrant Securities, conform in
all material respects to all statements relating thereto contained in the
Prospectus.
(xiii) The applicable Warrant Agreement, if any, and the applicable
Deposit Agreement, if any, will have been duly authorized, executed and
delivered by the Company prior to the issuance of the related Underwritten
Securities, and each constitutes a valid and legally binding agreement of
the Company enforceable in accordance with
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its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency or other similar laws relating to or affecting creditors'
rights generally and by general equity principles (regardless of whether
enforcement is considered in a proceeding in equity or at law); and the
Warrant Agreement, if any, and the Deposit Agreement, if any, each
conforms in all material respects to all statements relating thereto
contained in the Prospectus.
(xiv) If applicable, upon execution and delivery of the Depositary
Receipts pursuant to the terms of the Deposit Agreement, the persons in
whose names the Depositary Receipts are registered will be entitled to the
rights specified therein and in the Deposit Agreement, except as
enforcement of such rights may be limited by bankruptcy, insolvency or
other similar laws relating to or affecting creditors' rights generally
and by general equity principles (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(xv) Neither the Company nor any of its subsidiaries is in violation
of its charter or by-laws (or, in the case of subsidiaries which are not
corporations, other organizational documents) or in default in the
performance or observance of any material obligation, agreement, covenant
or condition contained in 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, except for any such violation or default that
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; and the
execution, delivery and performance of this Agreement, the applicable
Terms Agreement, the applicable Warrant Agreement, if any, or the
applicable Deposit Agreement, if any, and the consummation of the
transactions contemplated herein and therein and compliance by the Company
with its obligations hereunder and thereunder have been duly authorized by
all necessary corporate action, and will not conflict with or constitute a
breach of, or default under, or result in the creation or imposition of,
any lien, charge 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
<PAGE> 11
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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 any violation of the charter or by-laws of the
Company or any applicable law, administrative regulation or administrative
or court decree.
(xvi) The Company has operated and intends to continue to operate in
such a manner as to qualify to be taxed as a "real estate investment
trust" under the Internal Revenue Code of 1986, as amended (the "Code"),
for the taxable year in which sales of the Underwritten Securities are to
occur.
(xvii) Neither the Company nor any of its subsidiaries is an
"investment company" within the meaning of the Investment Company Act of
1940, as amended (the "1940 Act").
(xviii) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, threatened against or affecting the Company or
any of its subsidiaries which is required to be disclosed in the
Prospectus (other than as disclosed therein), or which might result in any
material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, or which might materially
and adversely affect the properties or assets thereof or which might
materially and adversely affect the consummation of this Agreement, the
applicable Terms Agreement, the applicable Warrant Agreement, if any, or
the applicable Deposit Agreement, if any, or the transactions contemplated
herein or therein; all pending legal or governmental proceedings to which
the Company or any of its subsidiaries is a party or of which any property
or assets of the Company or any of its subsidiaries is subject which are
not described in the Prospectus, including ordinary routine litigation
incidental to the business, are, considered in the aggregate, not
material; and there are no contracts or documents of the Company or any of
its subsidiaries which are required to be filed as exhibits to the
Registration Statement by the 1933 Act or by the 1933 Act Regulations
which have not been so filed.
<PAGE> 12
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(xix) The Company and its subsidiaries own or possess any trademarks,
service marks, trade names or copyrights required in order to conduct
their respective businesses as described in the Prospectus, other than
those the failure to possess or own 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.
(xx) No authorization, approval, permit or consent of any court or
governmental authority or agency is necessary in connection with the
consummation by the Company of the transactions contemplated by this
Agreement, the applicable Terms Agreement, any Warrant Agreement or any
Deposit Agreement, except such as may be required under the 1933 Act or
the 1933 Act Regulations or state securities or real estate syndication
laws.
(xxi) The Company and its subsidiaries possess such certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct their respective
businesses as described in the Prospectus, other than those the failure to
possess or own 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, and neither the Company nor any of its subsidiaries has
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit which, singly or
in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would materially and adversely affect the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise.
(xxii) The Company has full corporate power and authority to enter into
this Agreement, the applicable Terms Agreement and the Delayed Delivery
Contracts, if any, and this Agreement has been, and as of each
Representation Date, the applicable Terms Agreement and the Delayed
Delivery Contracts, if any, will have been, duly authorized, executed and
delivered by the Company.
(xxiii) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time
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they were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the 1934 Act and
the rules and regulations of the Commission under the 1934 Act (the "1934
Act Regulations"), and, when read together with the other information in
the Prospectus, at the time the Registration Statement became effective
and as of the applicable Representation Date or Closing Time (as defined
herein) or during the period specified in Section 3(f), did not and will
not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading.
(xxiv) There are no persons with registration or other similar rights
to have any securities registered pursuant to the Registration Statement.
(xxv) Neither the Company nor any of its officers or directors has
taken nor will any of them take, directly or indirectly, any action
resulting in a violation of Rule 10b-6 under the Securities Exchange Act
of 1934, as amended (the "1934 Act"), or designed to cause or result
in, or which has constituted or which reasonably might be expected to
constitute, the stabilization or manipulation of the price of the
Underwritten Securities, the Warrant Securities or shares of Common Stock
issuable upon conversion of any of the Preferred Shares or the Depositary
Shares or facilitation of the sale or resale of the Underwritten
Securities.
(xxvi)Except as otherwise disclosed in the 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) the Company
and its subsidiaries have good and marketable title in fee simple to all
real property and improvements described in the Prospectus and, at the
Closing Time, the Company and its subsidiaries will have good and
marketable title in fee simple to all real property and improvements as
described in the Prospectus; (b) all liens, charges, encumbrances, claims
or restrictions on or affecting the real property and improvements owned
by the Company or any of its subsidiaries which are required to be
disclosed in the Prospectus are disclosed therein; (c) neither the
<PAGE> 14
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Company nor any of its subsidiaries nor, to the knowledge of the Company,
any lessee of any portion of the real property or improvements owned by
the Company or any of its subsidiaries is in default under any of the
leases pursuant to which the Company or any of its subsidiaries leases
such real property or improvements, and the Company knows of no event
which, but for the passage of time or the giving of notice, or both, would
constitute a default under any of such leases, except such defaults that
would not, individually or in the aggregate, 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; (d) no tenant under any of the leases
pursuant to which the Company or any of its subsidiaries leases any of its
real property or improvements has an option or right of first refusal to
purchase the premises demised under such lease, except that a tenant of
the Galleria in Scottsdale, Arizona holds a right of first refusal to
purchase such property; (e) all the real property and improvements owned
by the Company and its subsidiaries comply with all applicable codes and
zoning laws and regulations, except for such failures to comply which
would not, individually or in the aggregate, 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 (f) the Company has no knowledge of any
pending or threatened condemnation, zoning change or other proceeding or
action that would in any manner affect the size of, use of, improvements
on, construction on, or access to any of the real property or improvements
owned by the Company or any of its subsidiaries, except such proceedings
or actions that would not, individually or in the aggregate, 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.
(xxvii) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (a) transactions are
executed in accordance with management's general or specific
authorizations; (b) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (c)
access to assets is
<PAGE> 15
-15-
permitted only in accordance with management's general or specific
authorization; and (d) the recorded accountability for assets is compared
with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences. Neither the Company nor any of its
employees or agents has made any payment of funds of the Company or
received or retained any funds in violation of any law, rule or regulation
which payment, receipt or retention of funds is of a character required to
be disclosed in the Prospectus.
(xxviii) The Company and its subsidiaries have title insurance on each of
their respective properties, in each case in an amount at least equal to
(a) the cost of acquisition of such property or (b) the cost of
construction of the improvements located on such property (measured at the
time of such construction), except, in each case, where the failure to
maintain such title insurance would not 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.
(xxix) Except as otherwise disclosed in the 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 which
could have a material adverse effect on the condition, financial or
otherwise, on the earnings, business affairs or business
<PAGE> 16
-16-
prospects of the Company and its subsidiaries considered as one
enterprise.
(b) Any certificate signed by any officer of the Company and
delivered to you or to counsel for the Underwriters in connection with the
offering of the Underwritten Securities shall be deemed a representation and
warranty by the Company to each Underwriter participating in such offering as to
the matters covered thereby on the date of such certificate and, unless
subsequently amended or supplemented, at each Representation Date subsequent
thereto.
Section 2. Purchase and Sale.
(a) The several commitments of the Underwriters to purchase the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to have been made on the basis of the representations and warranties
herein contained and shall be subject to the terms and conditions herein set
forth.
(b) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company may grant, if so provided in the applicable Terms Agreement relating to
the Initial Underwritten Securities, an option to the Underwriters named in such
Terms Agreement, severally and not jointly, to purchase up to the number of
Option Securities set forth therein at the same price per Option Security as is
applicable to the Initial Underwritten Securities. Such option, if granted, will
expire 30 days or such lesser number of days as may be specified in the
applicable Terms Agreement after the Representation Date relating to the Initial
Underwritten Securities, and may be exercised in whole or in part from time
to time only for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial Underwritten
Securities upon notice by you to the Company setting forth the number of Option
Securities as to which the several Underwriters are then exercising the option
and the time, date and place of payment and delivery for such Option Securities.
Any such time and date of delivery (a "Date of Delivery") shall be determined by
you, but shall not be later than seven full business days and not be earlier
than two full business days after the exercise of said option, unless otherwise
agreed upon by you and the Company. If the option is exercised as to all or any
portion of the Option Securities, each of the Underwriters, acting severally and
not jointly, will purchase that proportion of the total number of Option
Securities then
<PAGE> 17
-17-
being purchased which the number of Initial Underwritten Securities each such
Underwriter has severally agreed to purchase as set forth in the applicable
Terms Agreement bears to the total number of Initial Underwritten Securities
(except as otherwise provided in the applicable Terms Agreement), subject to
such adjustments as you in your discretion shall make to eliminate any sales or
purchases of fractional Initial Underwritten Securities.
(c) Payment of the purchase price for, and delivery of, the
Underwritten Securities to be purchased by the Underwriters shall be made at the
office of Cahill Gordon & Reindel, 80 Pine Street, New York, New York 10005, or
at such other place as shall be agreed upon by you and the Company, at 10:00
a.m., New York City time, on the third business day (unless postponed in
accordance with the provisions of Section 10) following the date of the
applicable Terms Agreement or, if pricing takes place after 4:30 p.m., New York
City time, on the date of the applicable Terms Agreement, on the fourth business
day (unless postponed in accordance with the provisions of Section 10) following
the date of the applicable Terms Agreement or at such other time as shall be
agreed upon by you and the Company (each such time and date being referred to as
a "Closing Time"). In addition, in the event that any or all of the Option
Securities are purchased by the Underwriters, payment of the purchase price for,
and delivery of certificates representing, such Option Securities, shall be made
at the above-mentioned offices of Cahill Gordon & Reindel, or at such other
place as shall be agreed upon by you and the Company on each Date of Delivery as
specified in the notice from you to the Company. Unless otherwise specified in
the applicable Terms Agreement, payment shall be made to the Company by
certified or official bank check or checks in New York Clearing House or similar
next-day funds payable to the order of the Company against delivery to you for
the respective accounts of the Underwriters for the Underwritten Securities to
be purchased by them. The Underwritten Securities or, if applicable, Depositary
Receipts evidencing the Depositary Shares, shall be in such authorized
denominations and registered in such names as you may request in writing at
least two business days prior to the applicable Closing Time or Date of
Delivery, as the case may be. The Underwritten Securities, which may be in
temporary form, will be made available for examination and packaging by you on
or before the first business day prior to the Closing Time or Date of Delivery,
as the case may be.
<PAGE> 18
-18-
If authorized by the applicable Terms Agreement, the Underwriters
named therein may solicit offers to purchase Underwritten Securities from the
Company pursuant to delayed delivery contracts ("Delayed Delivery Contracts")
substantially in the form of Exhibit B hereto with such changes therein as the
Company may approve. As compensation for arranging Delayed Delivery Contracts,
the Company will pay to you at Closing Time, for the respective accounts of the
Underwriters, a fee specified in the applicable Terms Agreement for each of the
Underwritten Securities for which Delayed Delivery Contracts are made at the
Closing Time as is specified in the applicable Terms Agreement. Any Delayed
Delivery Contracts are to be with institutional investors of the types described
in the Prospectus. At the Closing Time, the Company will enter into Delayed
Delivery Contracts (for not less than the minimum number of Underwritten
Securities per Delayed Delivery Contract specified in the applicable Terms
Agreement) with all purchasers proposed by the Underwriters and previously
approved by the Company as provided below, but not for an aggregate number of
Underwritten Securities in excess of that specified in the applicable Terms
Agreement. The Underwriters will not have any responsibility for the validity or
performance of Delayed Delivery Contracts.
You shall submit to the Company, at least three business days prior
to the Closing Time, the names of any institutional investor with which it is
proposed that the Company will enter into Delayed Delivery Contracts and the
number of Underwritten Securities to be purchased by each of them, and the
Company will advise you, at least two business days prior to the Closing Time,
of the names of the Institutions with which the making of Delayed Delivery
Contracts is approved by the Company and the number of Underwritten Securities
to be covered by each such Delayed Delivery Contract.
The number of Underwritten Securities agreed to be purchased by the
several Underwriters pursuant to the applicable Terms Agreement shall be reduced
by the number of Underwritten Securities covered by Delayed Delivery Contracts,
as to each Underwriter as set forth in a written notice delivered by you to the
Company; provided, however, that the total number of Underwritten Securities to
be purchased by all Underwriters shall be the total number of Underwritten
Securities covered by the applicable Terms Agreement, less the number of
Underwritten Securities covered by Delayed Delivery Contracts.
<PAGE> 19
-19-
Section 3. Covenants of the Company. The Company covenants with you,
and with each Underwriter participating in the offering of Underwritten
Securities, as follows:
(a) Immediately following the execution of the applicable Terms
Agreement, the Company will prepare a Prospectus Supplement setting forth
the number of Underwritten Securities covered thereby and their terms not
otherwise specified in the Prospectus pursuant to which the Underwritten
Securities are being issued, the names of the Underwriters participating
in the offering and the number of Underwritten Securities which each
severally has agreed to purchase, the names of the Underwriters acting as
co-managers in connection with the offering, the price at which the
Underwritten Securities are to be purchased by the Underwriters from the
Company, the initial public offering price, if any, and the selling
concession and reallowance, if any, any delayed delivery arrangements, and
such other information as you and the Company deem appropriate in
connection with the offering of the Underwritten Securities; and the
Company will, by the close of business in New York on the business day
immediately succeeding the date of the applicable Terms Agreement,
transmit copies of the Prospectus Supplement to the Commission for filing
pursuant to Rule 424(b) of the 1933 Act Regulations and will furnish to
the Underwriters named therein as many copies of the Prospectus (including
such Prospectus Supplement) as you shall reasonably request. If the
Company elects to rely on Rule 434 under the 1933 Act Regulations, the
Company will prepare an abbreviated term sheet that complies with the
requirements of Rule 434 under the 1933 Act Regulations and will provide
the Underwriters with copies of the form of Rule 434 Prospectus, in such
number as the Underwriters may reasonably request, and file or transmit
for filing with the Commission the form of Prospectus complying with Rule
434(c)(2) of the 1933 Act Regulations in accordance with Rule 424(b) of
the 1933 Act Regulations by the close of business in New York on the
business day immediately succeeding the date of the applicable Terms
Agreement.
(b) The Company will notify you immediately, and confirm such notice
in writing, of (i) the effectiveness of any amendment to the Registration
Statement, (ii) the transmittal to the Commission for filing of any
Prospectus Supplement or other supplement or amendment to the Prospectus
or any document to be filed pursuant to the 1934
<PAGE> 20
-20-
Act, (iii) the receipt of any comments from the Commission, (iv) any
request by the Commission for any amendment to the Registration Statement
or any amendment or supplement to the Prospectus or for additional
information, and (v) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company will make
every reasonable effort to prevent the issuance of any such stop order
and, if any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(c) At any time when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act in connection with sales of the
Underwritten Securities, the Company will give you notice of its intention
to file or prepare any amendment to the Registration Statement or any
amendment or supplement to the Prospectus, whether pursuant to the 1933
Act, 1934 Act or otherwise (including any revised Prospectus which the
Company proposes for use by the Underwriters in connection with an
offering of Underwritten Securities which differs from the Prospectus on
file at the Commission at the time the Registration Statement first
becomes effective, whether or not such revised Prospectus is required to
be filed pursuant to Rule 424(b) of the 1933 Act Regulations, or any
abbreviated term sheet prepared in reliance on Rule 434 of the 1933 Act
Regulations), and will furnish you with copies of any such amendment or
supplement a reasonable amount of time prior to such proposed filing or
preparation, as the case may be, and will not file or prepare any such
amendment or supplement or other documents in a form to which you or
counsel for the Underwriters shall reasonably object.
(d) The Company will deliver to each Underwriter as many signed and
conformed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated
by reference therein and documents incorporated or deemed to be
incorporated by reference therein) as such Underwriter reasonably
requests.
(e) The Company will furnish to each Underwriter, from time to time
during the period when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities, such number of copies of the Prospectus (as amended
<PAGE> 21
-21-
or supplemented) as such Underwriter may reasonably request for the
purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934
Act or the 1934 Act Regulations.
(f) If at any time when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act in connection with sales of the
Underwritten Securities any event shall occur or condition exist as a
result of which it is necessary, in the opinion of counsel for the
Underwriters or counsel for the Company, to amend or supplement the
Prospectus in order that the Prospectus will not include an untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if
it shall be necessary, in the opinion of either such counsel, at any such
time to amend or supplement the Registration Statement or the Prospectus
in order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, then the Company will promptly prepare and file with the
Commission such amendment or supplement, whether by filing documents
pursuant to the 1933 Act, the 1934 Act or otherwise, as may be necessary
to correct such untrue statement or omission or to make the Registration
Statement and Prospectus comply with such requirements, and the Company
will furnish to the Underwriters a reasonable number of copies of such
amendment or supplement.
(g) The Company will endeavor, in cooperation with the Underwriters,
to qualify the Underwritten Securities, the Warrant Securities, if any,
and the shares of Common Stock issuable upon conversion of the Preferred
Shares or the Depositary Shares, if any, for offering and sale under the
applicable securities laws and real estate syndication laws of such states
and other jurisdictions of the United states as you may designate. In each
jurisdiction in which the Underwritten Securities, the Warrant Securities,
if any, and the shares of Common Stock issuable upon conversion of the
Preferred Shares or the Depositary Shares, if any, have been so qualified,
the Company will file such statements and reports as may be required by
the laws of such jurisdiction to continue such qualification in effect for
so long as may be required for the distribution of the Underwritten
Securities and the Warrant Securities, if any; provided, however, that the
Company shall not be
<PAGE> 22
-22-
obligated to qualify as a foreign corporation in any jurisdiction where it
is not so qualified.
(h) With respect to each sale of Underwritten Securities, the
Company will make generally available to its security holders as soon as
practicable, but not later than 90 days after the close of the period
covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 of the 1933 Act Regulations) covering a twelve
month period beginning not later than the first day of the Company's
fiscal quarter next following the "effective date" (as defined in such
Rule 158) of the Registration Statement.
(i) The Company will use its best efforts to meet the requirements
to qualify as a "real estate investment trust" under the Code for the
taxable year in which sales of the Underwritten Securities are to occur.
(j) The Company, during the period when the Prospectus is required
to be delivered under the 1933 Act or the 1934 Act in connection with
sales of the Underwritten Securities, will file all documents required to
be filed with the Commission pursuant to Section 13, 14 or 15 of the 1934
Act within the time periods prescribed by the 1934 Act and the 1934 Act
Regulations.
(k) The Company will not, during a period of 90 days from the date
of the applicable Terms Agreement, with respect to the Underwritten
Securities covered thereby, without your prior written consent, offer or
sell, grant any option for the sale of, or enter into any agreement to
sell, any Securities of the same class or series or ranking on a parity
with such Underwritten Securities (other than the Underwritten Securities
which are to be sold pursuant to such Terms Agreement) or, if such Terms
Agreement relates to Underwritten Securities that are convertible into
Common Stock, any Common Stock or any security convertible into Common
Stock (except for Common Stock issued pursuant to reservations,
agreements, employee benefit plans, dividend reinvestment plans, employee
and director stock option plans or as partial or full payment for
properties to be acquired by the Company), except as may be otherwise
provided in the applicable Terms Agreement.
(l) If the Preferred Shares or Depositary Shares are convertible
into shares of Common Stock or if Warrants are
<PAGE> 23
-23-
issued, the Company will reserve and keep available at all times, free of
preemptive or other similar rights, a sufficient number of shares of
Common Stock or Preferred Shares, as the case may be, for the purpose of
enabling the Company to satisfy any obligations to issue such shares upon
conversion of the Preferred Shares or the Depositary Shares, as the case
may be, or upon exercise of the Warrants.
(m) If the Preferred Shares or Depositary Shares are convertible
into shares of Common Stock, the Company will use its best efforts to list
the shares of Common Stock issuable upon conversion of the Preferred
Shares or Depositary Shares on the New York Stock Exchange or such other
national exchange on which the Company's shares of Common Stock are then
listed.
(n) The Company has complied and will comply with all of the
provisions of Florida H.B. 1771, Section 1, Para. 17.130 of the Florida
Securities and Investors Act, and all regulations thereunder relating to
issuers doing business with Cuba.
Section 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement or the
applicable Terms Agreement, including (i) the printing and filing of the
Registration Statement as originally filed and of each amendment thereto, (ii)
the printing and filing of this Agreement and the applicable Terms Agreement,
(iii) the preparation, issuance and delivery of the Underwritten Securities to
the Underwriters and the Warrant Securities, if any, (iv) the fees and
disbursements of the Company's counsel and accountants, (v) the qualification of
the Underwritten Securities, the Warrant Securities, if any, and the shares of
Common Stock issuable upon conversion of the Preferred Shares or the Depositary
Shares, if any, under securities laws and real estate syndication laws in
accordance with the provisions of Section 3(g), including filing fees and the
fees and disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation of the Blue Sky Survey, (vi) the printing
and delivery to the Underwriters of copies of the Registration Statement as
originally filed and of each amendment thereto, and of the Prospectus and any
amendments or supplements thereto, (vii) the printing and delivery to the
Underwriters of copies of the applicable Deposit Agreement, if any, and the
applicable Warrant Agreement, if any, (viii) any fees charged by nationally
recognized
<PAGE> 24
-24-
statistical rating organizations for the rating of the Securities, (ix) the fees
and expenses, if any, incurred with respect to the listing of the Underwritten
Securities, the Warrant Securities, if any, or the shares of Common Stock
issuable upon conversion of the Preferred Shares or the Depositary Shares, if
any, on any national securities exchange, and (x) the fees and expenses, if any,
incurred with respect to any filing with the National Association of Securities
Dealers, Inc.
If the applicable Terms Agreement is terminated by you in accordance
with the provisions of Section 5 or Section 9(b)(1), the Company shall reimburse
the Underwriters named in such Terms Agreement for all of their out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the
Underwriters.
Section 5. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase Underwritten Securities pursuant to
the applicable Terms Agreement are subject to the accuracy of the
representations and warranties of the Company herein contained, to the accuracy
of the statements of the Company's officers made in any certificate pursuant to
the provisions hereof, to the performance by the Company of all of its covenants
and other obligations hereunder, and to the following further conditions:
(a) At Closing Time, (i) no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, (ii) if
Preferred Shares or Depositary Shares are being offered, the rating
assigned by any nationally recognized statistical rating organization to
any preferred stock of the Company as of the date of the applicable Terms
Agreement shall not have been lowered since such date nor shall any such
rating organization have publicly announced that it has placed any
preferred stock of the Company on what is commonly termed a "watch list"
for possible downgrading, and (iii) there shall not have come to your
attention any facts that would cause you to believe that the Prospectus,
together with the applicable Prospectus Supplement, at the time it was
required to be delivered to purchasers of the Underwritten Securities,
included an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in light
of the circumstances existing at such time, not misleading.
<PAGE> 25
-25-
(b) At Closing Time, you shall have received:
(1) The favorable opinion, dated as of Closing Time, of Latham
& Watkins, counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(i) The applicable Warrant Agreement, if any, and the
applicable Deposit Agreement, if any, have been duly executed
and delivered by the Company, and (assuming due authorization,
execution and delivery by the Warrant Agent in the case of the
Warrant Agreement, and the Depositary, in the case of the
Deposit Agreement) each constitutes a valid and legally
binding agreement of the Company enforceable in accordance
with its terms; and the Warrant Agreement, if any, and the
Deposit Agreement, if any, each confirms in all material
respects to all statements relating thereto contained in the
Prospectus.
(ii) If applicable, upon execution and delivery of the
Depositary Receipts pursant to the terms of the Deposit
Agreement, the persons in whose names such Depositary Receipts
are registered will be entitled to the rights specified
therein and in the Deposit Agreement, to the extent such
rights are governed by the laws of the State of New York.
(iii) Each of this Agreement, the applicable Terms
Agreement and the Delayed Delivery Contracts, if any, has been
duly executed and
delivered by the Company.
(iv) The Registration Statement is effective under the
1933 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 1933 Act or proceedings
therefor initiated or threatened by the Commission.
(v) The Registration Statement and the Prospectus,
excluding the documents incorporated by reference therein, as
of their respective
<PAGE> 26
-26-
effective or issue dates, comply as to form in all material
respects with the requirements for registration statements on
Form S-3 under the 1933 Act and the 1933 Act Regulations; if
applicable, the Rules 434 Prospectus conforms to the
requirements of the Rule 434 under the 1933 Act Regulations;
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 or the Prospectus; and
it being understood, further, that in passing upon the
compliance as to form of the Registration Statement, the
Prospectus and the Rule 434 Prospectus, if applicable, such
counsel may assume that the statements made therein are
correct and complete.
(vi) Each document filed pursuant to the 1934 Act (other
than the financial statements, schedules and other financial
and statistical data included therein, as to which no opinion
need be rendered) and incorporated or deemed to be
incorporated by reference in the Prospectus complied when so
filed as to form in all material respects with the 1934 Act
and the 1934 Act Regulations. In passing upon compliance as to
form of such documents, such counsel may assume that the
statements made therein are correct and complete.
(vii) 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,
the applicable Terms Agreement, the applicable Deposit
Agreement, if any, or the applicable Warrant Agreement, if
any, except such as may be required under the 1933 Act and
state securities laws or real estate syndication laws.
(viii) Neither the Company nor any of its
subsidiaries is required to be registered under
the 1940 Act.
<PAGE> 27
-27-
(ix) 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, 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.
(x) 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 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; except as otherwise stated in the
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, are fully paid and
non-assessable.
(xi) 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 will enable 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 conditioned
upon certain representations as to factual matters made by the
Company to such counsel as described therein.
(xii) 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
<PAGE> 28
-28-
of law, summaries of legal matters, or legal conclusions, have
been reviewed by them and are correct in all material
respects.
(2) The favorable opinion, dated as of the Closing Time, of
Ballard Spahr Andrews & Ingersoll, special Maryland counsel for the
Company, in form and substance satisfactory to counsel for the
Underwriters, 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
and the applicable Terms Agreement.
(iii) The authorized, issued and outstanding capital stock
of the Company is in all material respects set forth in the
Prospectus (as of the date set forth therein) under
"Capitalization" (except for subsequent issuance, 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) and
such shares of stock have been duly authorized and validly
issued and are fully paid and non-assessable.
(iv) The Underwritten Securities being sold pursuant to
this Agreement and the applicable Terms Agreement and, if
applicable, the deposit of the Preferred Shares in accordance
with the provisions of a Deposit Agreement, have been duly and
validly authorized by all necessary corporate action on the
part of the Comany and such Underwritten Securities have been
duly authorized for issuance and sale pursuant to this
Agreement and such Terms Agreement; and such Underwritten
Securities, when issued and
<PAGE> 29
-29-
delivered by the Company pursuant to this Agreement against
payment of the consideration set forth in such Terms Agreement
or any Delayed Delivery Contract, will be validly issued,
fully paid and non-assessable; and the issuance of such
Underwritten 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"); and the Preferred Shares, if applicable, conform to
the provisions of the Articles Supplementary.
(v) If applicable, the Warrants have been duly
authorized and, when issued and delivered pursuant to this
Agreement and the applicable Terms Agreement and countersigned
by the Warrant Agent as provided in the Warrant Agreement,
will have been duly executed, issued and delivered and will
constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Warrant
Agreement under which they are to be issued, insofar as the
Warrants are governed by the MGCL and assuming the validity
and enforceability of such Warrant Agreement.
(vi) If applicable, the shares of Common Stock issuable
upon conversion of any of the Preferred Shares or Depositary
Shares, or the exercise of Warrant Securities, have been duly
and validly authorized and reserved for issuance upon such
conversion or exercise by all necessary corporate action on
the part of the Company and such shares, when issued upon such
conversion or exercise in accordance with the charter of the
Company, the Deposit Agreement, the Terms Agreement, the
Delayed Delivery Contract or the Warrant Agreement, as the
case may be, will be duly authorized and validly issued and
will be fully paid and non-assessable, and the issuance of
such shares upon such conversion or exercise will not be
subject to preemptive or other similar rights arising under
the Charter or Bylaws of the Company or under the MGCL;
<PAGE> 30
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(vii) The applicable Warrant Agreement, if any, and the
applicable Deposit Agreement, if any, have been duly
authorized by the Company, and the person(s) executing such
agreements on behalf of the Company have been duly authorized
to do so.
(viii) If applicable, upon execution and delivery of the
Depositary Receipts pursuant to the terms of the Deposit
Agreement, the persons in whose names the Depositary Receipts
are registered will be entitled to the rights specified
therein and in the Deposit Agreement, to the extent such
rights are governed by the laws of the State of Maryland and
assuming the validity and enforceability of the Deposit
Agreement.
(ix) The execution and delivery on behalf of the Company
of each of this Agremeent, the applicable Terms Agreement and
the Delayed Delivery Contracts, if any, has been duly
authorized by the Company, and the person(s) executing each
such agreement on behalf of the Company have been duly
authorized to do so.
(x) If applicable, the relative rights, preferences,
interests and powers of the Preferred Shares or Depositary
Shares, as the case may be, are as set forth in the Articles
Supplementary relating thereto, and all such provisions are
valid under the MGCL; and, as applicable, the form of
certificate used to evidence the Preferred Shares being
represented by the Depositary Shares and the form of
certificate used to evidence the related Depositary Receipts
are in due and proper form under the MGCL and comply with all
applicable statutory requirements under the MGCL.
(xi) The Underwritten Securities, the Warrant Securities,
and the shares of Common Stock issuable upon conversion of the
Preferred shares or Depositary shares, if applicable, conform
in all material respects to the statements relating thereto
contained in the Prospectus, insofar as such descriptions
relate to the Charter or Bylaws of the Company or issues
arising under
<PAGE> 31
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the MGCL, and the form of certificate used to evidence the
Underwritten Securities, if applicable, is in due and proper
form and complies in all material respects with all applicable
statutory requirements under the MGCL.
(xii) 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.
(3) The favorable opinion, dated as of Closing Time, of S.
Eric Ottesen, Esq., counsel for the Company, in form and substance
satisfactory for the Underwriters, to the effect that:
(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
<PAGE> 32
-32-
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 ageements,
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, the applicable Terms
Agreement, the applicable Deposit Agreement, if any, or the
applicable Warrant Agreement, if any, and the consummation of
the transactions contemplated herein and therein and
compliance by the Company with its obligations hereunder and
thereunder will not conflict with or constitute a breach of,
or default under, or result in the creation or imposition of
any lien, charge 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
<PAGE> 33
-33-
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 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 Comany 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.
<PAGE> 34
-34-
(viii) The Company and/or its respective subsidiaries hold
title to the properties and assets described in the
Prospectus, subject only to the liens and encumbrances
securing indebtedness reflected in the 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.
(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.
(4) The favorable opinion, dated as of Closing Time, of Cahill
Gordon & Reindel, counsel for the Underwriters, with respect to the
matters requested by the Underwriters.
(5) In giving their opinions required by subsections (b)(1),
(b)(3) and (b)(4), respectively, of this Section, Latham & Watkins,
S. Eric Ottesen, Esq. and Cahill Gordon & Reindel shall each
additionally state that nothing has come to their attention that
would lead them to believe that the Registration Statement or any
amendment thereto, at the time it became effective or at the time an
Annual Report on Form 10-K was filed by the Company with the
Commission (whichever is later), or at the Representation Date,
contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus or any
amendment or supplement thereto, at the Representation Date or at
Closing Time, included or includes an
<PAGE> 35
-35-
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. In giving their opinions required by subsections (b)(1),
(b)(2), (b)(3) and (b)(4), respectively, of this Section, Latham &
Watkins, Ballard Spahr Andrews & Ingersoll, S. Eric Ottesen, Esq.
and Cahill Gordon & Reindel may rely, (1) as to all matters of fact,
upon certificates and written statements of officers and employees
of and accountants for the Company and (2) with respect to certain
other matters, upon certificates of appropriate government officials
in such jurisdiction, and Cahill Gordon & Reindel may additionally
rely, as to matters involving the laws of the State of Maryland,
upon the opinion of Ballard Spahr Andrews & Ingersoll (or other
counsel reasonably satisfactory to counsel for the Underwriters) in
form and substance satisfactory to counsel for the Underwriters.
(c) At Closing Time, there shall not have been, since the date of
the applicable Terms Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business; and
you shall have received a certificate of the Chief Executive Officer or a
Vice President of the Company and of the chief financial accounting
officer of the Company, dated as of such Closing Time, to the effect that
(i) there has been no such material adverse change and (ii) the
representations and warranties in Section 1 are true and correct with the
same force and effect as though such Closing Time were a Representative
Date. As used in this Section 5(c), the term "Prospectus" means the
Prospectus in the form first used to confirm sales of the Underwritten
Securities.
(d) At the time of execution of the applicable Terms Agreement, you
shall have received a letter dated such date from Coopers & Lybrand, in
form and substance satisfactory to you, to the effect that (i) they are
independent public accountants with respect to the Company and its
subsidiaries within the meaning of the 1933 Act and the 1933 Act
Regulations thereunder; (ii) it is their
<PAGE> 36
-36-
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 and the 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 1933
Act and the 1933 Act Regulations; (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 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 1934 Act and
the 1934 Act Regulations, (B) the unaudited financial data of the Company
in the Registation Statement and the 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 (C) at a specified date not
more than three days prior to the date of the applicable Terms 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, during the period from
the date of the most recent consolidated statement of operations included
or incorporated by reference in the Registration Statement and the
Prospectus to a specified date not more than three days prior to the date
of the applicable Terms Agreement, there were any decreases, as compared
with the corresponding period in the preceding year, in consolidated
revenues, operating
<PAGE> 37
-37-
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
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 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.
(e) At Closing Time, you shall have received a letter, dated as of
Closing Time, from Coopers & Lybrand LLP, to the effect that they reaffirm
the statements made in the letter furnished pursuant to subsection (d) of
this Section, except that the "specified date" referred to shall be a date
not more than three days prior to such Closing Time.
(f) [intentionally omitted]
(g) At Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may require for the
purpose of enabling them to pass upon the issuance and sale of the
Underwritten Securities and the Warrant Securities, if any, as herein
contemplated and related proceedings, or in order to evidence the accuracy
of any of the representations or warranties, or the fulfillment of any of
the conditions, herein contained; and all proceedings taken by the Company
in connection with the issuance and sale of the Underwritten Securities
and the Warrant Securities, if any, as herein contemplated shall be
satisfactory in form and substance to you and counsel for the
Underwriters.
(h) In the event that the Underwriters exercise their option
provided in a Terms Agreement as set forth in Section 2(b) hereof to
purchase all or any portion of the Option Securities, the representations
and warranties of the Company contained herein and the statements in any
certificates furnished by the Company hereunder shall be
<PAGE> 38
-38-
true and correct as of each Date of Delivery and, at the relevant Date of
Delivery, you shall have received:
(1) A certificate, dated such Date of Delivery, of the Chief
Executive Officer or a Vice President of the Company and of the
chief financial or chief accounting officer of the Company
confirming that the certificate delivered at the Closing Time
pursuant to Section 5(c) hereof remains true and correct as of such
Date of Delivery.
(2) The favorable opinion of Latham & Watkins, counsel for the
Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Section 5(b)(1) and
5(b)(5) hereof.
(3) The favorable opinion of Ballard Spahr Andrews &
Ingersoll, special Maryland counsel for the Company, dated such Date
of Delivery, relating to the Option Securities to be purchased on
such Date of Delivery and otherwise to the same effect as the
opinion required by Section 5(b)(2) hereof.
(4) The favorable opinion of S. Eric Ottesen, Esq., counsel
for the Company, in form and substance satisfactory to counsel for
the Underwriters, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Sections
5(b)(3) and 5(b)(5) hereof.
(5) The favorable opinion of Cahill Gordon & Reindel, counsel
for the Underwriters, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Sections
5(b)(4) and 5(b)(5) hereof.
(6) A letter from Coopers & Lybrand LLP, in form and substance
satisfactory to you and dated such Date of Delivery, substantially
the same in form and substance as the letter furnished to you
pursuant to Section 5(d) hereof, except that the "specified date" in
the letter furnished pursuant to this Section
<PAGE> 39
-39-
5(h)(6) shall be a date not more than three days prior to such Date
of Delivery.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, the applicable Terms Agreement
may be terminated by you by notice to the Company at any time at or prior to the
Closing Time, and such termination shall be without liability of any party to
any other party except as provided in Section 4 hereof.
Section 6. Indemnification. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act as follows:
(1) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the information deemed to
be part of the Registration Statement pursuant to Rule 430A(b) or Rule 434
of the 1933 Act Regulations, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus (or any amendment or supplement thereto) or
the omission, or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(2) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(3) against any and all expense whatsoever (including, the fees and
disbursements of counsel chosen by you) reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceedings by any governmental agency or body, commenced
or
<PAGE> 40
-40-
threatened, or any claim whatsoever based upon any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (1) or (2) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through you expressly for use in the Registration Statement (or any
amendment thereto) and the Prospectus (or any amendment or supplement thereto);
provided further, that with respect to any preliminary prospectus, such
indemnity shall not inure to the benefit of any Underwriter (or the benefit of
any person controlling such Underwriter) if the person asserting any such
losses, liabilities, claims, damages or expense purchased the Underwritten
Securities which are the subject thereof from such 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 Underwritten Securities to such person in any
case where such sending or giving is required by the 1933 Act and the untrue
statement or omission of a material fact contained in such preliminary
prospectus was corrected in the Prospectus and the Prospectus was delivered to
such Underwriter a reasonable amount of time prior to the date of delivery of
such confirmation.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, 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 1933 Act, against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a) of
this Section, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or
any amendment thereto) or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Underwriter through you expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an
<PAGE> 41
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indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of such
action. If it so elects within a reasonable time after receipt of such notice,
an indemnifying party, jointly with any other indemnifying parties receiving
such notice, may assume the defense of such action with counsel chosen by it and
approved by the indemnified parties defendant in such action, unless such
indemnified parties reasonably object to such assumption on the ground that
there may be legal defenses available to them which are different from or in
addition to those available to such indemnifying party. If an indemnifying party
assumes the defense of such action, the indemnifying parties shall not be liable
for any fees and expenses of counsel for the indemnified parties incurred
thereafter in connection with such action. In no event shall the indemnifying
parties be liable for fees and expenses of more than one counsel (in addition to
any local counsel) separate from their own counsel for all indemnified parties
in connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.
(d) For purposes of this Section 6, all references to the
Registration Statement, any preliminary prospectus or the Prospectus, or any
amendment or supplement to any of the foregoing, shall be deemed to include,
without limitation, any electronically transmitted copies thereof, including,
without limitation, any copies filed with the Commission pursuant to EDGAR.
Section 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company and the
Underwriters with respect to the offering of the Underwritten Securities shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by said indemnity agreement incurred by the Company and
one or more of the Underwriters in respect of such offering, as incurred, in
such proportions that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount appearing on the
cover page of the Prospectus in respect of such offering bears to the initial
public offering price appearing thereon and the Company is responsible for the
balance; provided, however, that no person guilty of
<PAGE> 42
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fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Underwritten Securities
purchased by it pursuant to the applicable Terms Agreement and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay in respect of such losses,
liabilities, claims, damages and expenses. For purposes of this Section, each
person, if any, who controls an Underwriter within the meaning of Section 15 of
the 1933 Act shall have the same rights to contribution as such 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 1933 Act shall have the same rights to
contribution as the Company.
Section 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or the applicable Terms Agreement, or contained in certificates of
officers of the Company submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any termination of this Agreement or the
applicable Terms Agreement, or investigation made by or on behalf of any
Underwriter or any controlling person, or by or on behalf of the Company, and
shall survive delivery of and payment of the Underwritten Securities.
Section 9. Termination of Agreement. (a) This Agreement (excluding
the applicable Terms Agreement) may be terminated for any reason at any time by
the Company or by you upon the giving of 30 days' written notice of such
termination to the other party hereto.
(b) You may also terminate the applicable Terms Agreement, by notice
to the Company, at any time at or prior to the Closing Time (i) if there has
been, since the date of such Terms Agreement or since the respective dates as of
which information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any material adverse change in the financial
<PAGE> 43
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markets in the United States or elsewhere or any outbreak of hostilities or
escalation thereof or other calamity or crisis the effect of which is such as to
make it, in your judgment, impracticable to market the Underwritten Securities
or enforce contracts for the sale of the Underwritten Securities, or (iii) if
trading in any of the securities of the Company has been suspended or limited by
the Commission or the New York Stock Exchange, or if trading generally on either
the New York Stock Exchange or the American Stock Exchange has been suspended or
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required, by either of said Exchanges
or by order of the Commission or any other governmental authority, or if a
banking moratorium has been declared by either Federal, New York or California
authorities, or (iv) if Preferred Shares or Depositary Shares are being offered
and the rating assigned by any nationally recognized statistical rating
organization to any preferred stock of the Company as of the date of the
applicable Terms Agreement shall have been lowered since such date or if any
such rating organization shall have publicly announced that it has placed any
preferred stock of the Company on what is commonly termed a "watch list" for
possibly downgrading. As used in this Section 9(b), the term "Prospectus" means
the Prospectus in the form first used to confirm sales of the Underwritten
Securities.
(c) In the event of any such termination, (x) the covenants set
forth in Section 3 with respect to any offering of Underwritten Securities shall
remain in effect so long as any Underwriter owns any such Underwritten
Securities purchased from the Company pursuant to the applicable Terms Agreement
and (y) the covenant set forth in Section 3(h) hereof, the provisions of Section
4 hereof, the indemnity and contribution agreements set forth in Sections 6 and
7 hereof, and the provisions of Sections 8 and 13 hereof shall remain in effect.
Section 10. Default by One or More of the Underwriters. If one or
more of the Underwriters shall fail at the Closing Time to purchase the
Underwritten Securities which it or they are obligated to purchase under the
applicable Terms Agreement (the "Defaulted Securities"), then you shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Default Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, you shall not have completed
such arrangements within such 24-hour period, then:
<PAGE> 44
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(a) if the total number of Defaulted Securities does not exceed 10%
of the total number of Underwritten Securities to be purchased pursuant to
such Terms Agreement, the non-defaulting Underwriters named in such Terms
Agreement shall be obligated, severally and not jointly, to purchase the
full amount thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the total number of Defaulted Securities exceeds 10% of the
total number of Underwritten Securities to be purchased pursuant to such
Terms Agreement, the applicable Terms Agreement shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect to its default under this
Agreement and the applicable Terms Agreement.
In the event of any such default which does not result in a
termination of the applicable Terms Agreement, either you or the Company shall
have the right to postpone the Closing Time for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
the Prospectus or in any other documents or arrangements.
Section 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed c/o Smith Barney Inc. 388 Greenwich Street, New
York, New York 10013, attention of [James C. Cowles], Managing Director; and
notices to the Company shall be directed to it at 16955 Via Del Campo, Suite
110, San Diego, California 92127, attention of Gary Sabin, President.
Section 12. Parties. This Agreement and the applicable Terms
Agreement shall each inure to the benefit of and be binding upon you and the
Company and any Underwriter who becomes a party to such Terms Agreement, and
their respective successors. Nothing expressed or mentioned in this Agreement or
the applicable Terms Agreement is intended or shall be construed to give any
person, firm or corporation, other than those referred to in Section 6 and 7 and
their heirs and legal representatives, any legal or equitable right, remedy or
claim
<PAGE> 45
-45-
under or in respect of this Agreement or such Terms Agreement or any
provision herein or therein contained. This Agreement and the applicable Terms
Agreement and all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the parties hereto and thereto and
their respective successors and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Underwritten Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
Section 13. Governing Law and Time. This Agreement and the
applicable Terms Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to agreements made and to be
performed in said State. Specified times of day refer to New York City time.
Section 14. Counterparts. This Agreement and the applicable
Terms Agreement may be executed in one or more counterparts, and if executed in
more than one counterpart the executed counterparts shall constitute a single
instrument.
<PAGE> 46
-46-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts will become binding agreement
between you and the Company in accordance with its terms.
Very truly yours,
EXCEL REALTY TRUST, INC.
By: /s/ GARY B. SABIN
-----------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first
above written:
SMITH BARNEY INC.
By: /s/ JAMES C. COWLES
----------------------
<PAGE> 1
EXHIBIT 1.02
EXCEL REALTY TRUST, INC.
(a Maryland corporation)
1,500,000 shares of Common Stock
TERMS AGREEMENT
June 26, 1996
To: Excel Realty Trust, Inc.
16955 Via Del Campo, Suite 110
San Diego, California 92127
Attention: Chairman of the Board of Directors
Dear Sirs:
We (the "Underwriter") understand that Excel Realty Trust, Inc., a
Maryland corporation (the "Company"), proposes to issue and sell the number of
shares set forth below of its Common Stock, $.01 par value (the "Common Stock,"
also referred to as the "Underwritten Securities"). Subject to the terms and
conditions set forth or incorporated by reference herein, the Underwriter offers
to purchase 1,500,000 of Initial Underwritten Securities (as defined in the
Underwriting Agreement referenced to below), and the Option Securities (as
defined in the Underwriting Agreement referred to below) to the extent any are
purchased, at the purchase price set forth below. The Underwriter will have 30
days from the date of this Terms Agreement to purchase any Option Securities.
Payment shall be made to the Company in same-day funds payable to the order of
the Company against delivery to the Underwriter of the Underwritten Securities.
The Underwritten Securities shall have the following terms:
Title of Securities: Common Stock
Number of Shares: 1,500,000
Public offering price per share: $20.625
Purchase price per share: $19.6182
Number of Option Securities, if any, that may be purchased by
the Underwriter: 225,000 shares
Closing date and location: July 1, 1996 at the offices of
Cahill Gordon & Reindel
A-1
<PAGE> 2
All the provisions contained in the document attached as Annex A
hereto entitled "Excel Realty Trust, Inc. - Common Stock, Warrants to Purchase
Common Stock, Preferred Shares and Depositary Shares - Underwriting Agreement"
are hereby incorporated by reference in their entirety herein and shall be
deemed to be a part of this Terms Agreement to the same extent as if such
provisions had been set forth in full herein. Terms defined in such document are
used herein as therein defined. It is understood that the shares of Common Stock
being purchased hereunder will be entitled to receive the $.46 per share
dividend to be paid to all holders of record on July 1, 1996; in addition, to
the extent any Option Securities are purchased by the Underwriter subsequent to
July 1, 1996, the Company will pay to the Underwriter on the date the Option
Securities are purchased an amount equal to $.46 per share for each Option
Security so purchased (such aggregate amount to be deducted from the purchase
price of the Option Securities).
In lieu of Section 3(k) of the Underwriting Agreement and in
consideration of the agreement by the Underwriter to purchase shares of Common
Stock, the Company hereby agrees that it will not, directly or indirectly,
offer, sell, contract to sell or otherwise dispose of any Common Stock, or any
security ranking on a parity with the Common Stock or any security convertible
into or exchangeable for or exercisable for Common Stock, or publicly announce
an intent to take such action (except, in each of the foregoing instances, for
Common Stock issued pursuant to reservations, agreements or other existing
contractual obligations, employee benefit plans, dividend reinvestment plans,
employee and director stock option plans or as partial or full payment to the
seller of real property acquired or to be acquired by the Company), prior to the
expiration of 30 days from the date hereof without the prior written consent of
the Underwriter; provided, that, the consent of the Underwriter shall not be
necessary for any sale of Common Stock during such 30-day period at a net price
(after deducting any discounts or commissions) equal to or greater than the
"Purchase price per share" above; provided, further, that the Company will in no
event sell any Common Stock during such 30-day period at a price less than
$20.00 per share (before deducting any discounts or commissions).
Notwithstanding the foregoing, prior to the expiration of 30 days from the date
hereof the Company will notify the Underwriter of any sale or proposed sale of
Common Stock.
A-2
<PAGE> 3
Please accept this offer by signing a copy of this Terms Agreement
in the space set forth below and returning the signed copy to us.
Very truly yours,
SMITH BARNEY INC.
By: /s/ JAMES C. COWLES
------------------------
Accepted:
EXCEL REALTY TRUST, INC.
By: /s/ GARY B. SABIN
-------------------
Name:
Title:
A-3
