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) April 23, 1998
--------------------
SECURITY CAPITAL PACIFIC TRUST
(Exact Name of Registrant as Specified in its Charter)
Maryland
(State or Other Jurisdiction of Incorporation)
1-10272 74-6056896
(Commission File Number) (I.R.S. Employer Identification No.)
7670 South Chester Street, Englewood, Colorado 80112
(Address of Principal Executive Offices) (Zip Code)
(303) 708-5959
(Registrant's Telephone Number, Including Area Code)
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
<PAGE>
Item 5. Other Events.
On April 23, 1998, Security Capital Pacific Trust, a Maryland real
estate investment trust ("PTR"), priced an offering of 2,049,587 of
its Common Shares of Beneficial Interest, $1.00 par value per share
(the "Common Shares"). Copies of the underwriting agreement and pricing
agreement relating to the Common Shares are included as exhibits hereto and
are incorporated herein by reference.
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
Exhibit No. Document Description
----------- --------------------
99.1 Underwriting Agreement dated April 23, 1998
between Merrill Lynch, Pierce, Fenner & Smith
Incorporated and Security Capital Pacific
Trust.
99.2 Pricing Agreement dated April 23, 1998 between
Merrill Lynch, Pierce, Fenner & Smith
Incorporated and Security Capital Pacific
Trust.
<PAGE>
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.
SECURITY CAPITAL PACIFIC TRUST
Dated: April 28, 1998 By: /s/ Jeffrey A. Klopf
--------------------
Jeffrey A. Klopf
Secretary
Exhibit 99.1
Security Capital Pacific Trust
------------
Shares of Beneficial Interest
($1.00 par value per share)
Underwriting Agreement
April 23, 1998
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
From time to time, Security Capital Pacific Trust, a real estate
investment trust organized under the laws of the State of Maryland (the
"Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms
and conditions stated herein and therein, to issue and sell to the firms
named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and
the securities specified therein) certain of its Shares of Beneficial
Interest, $1.00 par value per share (the "Shares"), specified in Schedule
II to such Pricing Agreement (with respect to such Pricing Agreement, the
"Firm Shares"). If specified in such Pricing Agreement, the Company may
grant to the Underwriters the right to purchase at their election an
additional number of shares, specified in such Pricing Agreement as
provided in Section 3 hereof (the "Optional Shares"). The Firm Shares and
the Optional Shares, if any, which the Underwriters elect to purchase
pursuant to Section 3 hereof are herein collectively called the "Designated
Shares".
The terms and rights of any particular issuance of Designated
Shares shall be as specified in the Pricing Agreement relating thereto.
1. Particular sales of Designated Shares may be made from time to
time to the Underwriters of such Shares, for whom the firms designated as
representatives of the Underwriters of such Shares in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The
term "Representatives" also refers to a
-1-
<PAGE>
single firm acting as sole representative of the Underwriters and to
Underwriters who act without any firm being designated as their
representative. This Underwriting Agreement shall not be construed as an
obligation of the Company to sell any of the Shares or as an obligation of
any of the Underwriters to purchase any of the Shares. The obligation of
the Company to issue and sell any of the Shares and the obligation of any
of the Underwriters to purchase any of the Shares shall be evidenced by the
Pricing Agreement with respect to the Designated Shares specified therein.
Each Pricing Agreement shall specify the aggregate number of the Firm
Shares, the maximum number of Optional Shares, if any, the initial public
offering price of such Firm and Optional Shares or the manner of
determining such price, the purchase price to the Underwriters of such
Designated Shares, the names of the Underwriters of such Designated Shares,
the names of the Representatives of such Underwriters, the number of such
Designated Shares to be purchased by each Underwriter and the commission,
if any, payable to the Underwriters with respect thereto and shall set
forth the date, time and manner of delivery of such Firm and Optional
Shares, if any, and payment therefor. The Pricing Agreement shall also
specify (to the extent not set forth in the registration statement and
prospectus with respect thereto) the terms of such Designated Shares. A
Pricing Agreement shall be in the form of an executed writing (which may be
in counterparts), and may be evidenced by an exchange of telegraphic
communications or any other rapid transmission device designed to produce a
written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be
several and not joint.
2. The Company represents and warrants to, and agrees with, each
of the Underwriters that:
(a) A registration statement on Form S-3 (File No.
333-44639) (the "Initial Registration Statement") in respect of
the Shares has been filed with the Securities and Exchange
Commission (the "Commission"); the Initial Registration Statement
and any post-effective amendments thereto, each in the form
heretofore delivered or to be delivered to the Representatives,
and, excluding exhibits to such registration statement, but
including all documents incorporated by reference in the
prospectus included therein, to the Representatives for each of
the other Underwriters, have been declared effective by the
Commission in such form; no other document (other than a
registration statement, if any, increasing the size of the
offering (a "Rule 462(b) Registration Statement"), filed pursuant
to Rule 462(b) under the Securities Act of 1933, as amended (the
"Act"), which will become effective upon filing) with respect to
such registration statement or document incorporated by reference
therein has heretofore been filed, or transmitted for filing, with
the Commission (other than prospectuses filed pursuant to Rule
424(b) of the rules and regulations of the Commission under the
Act each in the form heretofore delivered by the Underwriters);
and no stop order suspending the effectiveness of the Initial
Registration Statement or the Rule 462(b) Registration Statement
has been issued and no proceeding for that purpose has been
initiated or threatened by the Commission (any preliminary
prospectus included in the Initial Registration Statement or filed
with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Act, is hereinafter called
a "Preliminary Prospectus"; the various parts of the Initial
Registration
-2-
<PAGE>
Statement, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained therein at
the time such part of the Initial Registration Statement became
effective, or such part of the Rule 462(b) Registration Statement
that became or hereafter becomes effective, each as amended at the
time such part of a registration statement became effective, are
hereinafter collectively called a "Registration Statement"; the
prospectus relating to the Shares, in the form in which it has
most recently been filed, or transmitted for filing, with the
Commission on or prior to the date of this Agreement, is
hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein
pursuant to the applicable form under the Act, as of the date of
such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment to
a Registration Statement shall be deemed to refer to and include
any annual report of the Company filed pursuant to Section 13(a)
or 15(d) of the Exchange Act after the effective date of the
Initial Registration Statement that is incorporated by reference
in a Registration Statement; and any reference to the Prospectus
as amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented in relation to the
applicable Designated Shares in the form in which it is filed with
the Commission pursuant to Rule 424(b) under the Act in accordance
with Section 5(a) hereof, including any documents incorporated by
reference therein as of the date of such filing);
(b) The documents incorporated by reference in the
Prospectus, when they become effective or were filed with the
Commission, as the case may be, conformed in all material respects
to the requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder, and
none of such documents 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; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed with
the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material
fact or omit to state a fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by
an Underwriter of Designated Shares through the Representatives
expressly for use in the Prospectus as amended or supplemented
relating to such Shares;
-3-
<PAGE>
(c) The Initial Registration Statement and the Prospectus
conform, and any Rule 462(a) Registration Statement and any
further amendments or supplements to the Initial Registration
Statement, any Rule 462(b) Registration Statement and the
Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the
applicable effective date as to the Initial Registration Statement
and any Rule 462(b) Registration Statement and any amendment
thereto, and as of the applicable filing date as to the Prospectus
and any amendment or supplement thereto, 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; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter of
Designated Shares through the Representatives expressly for use in
the Prospectus as amended or supplemented relating to such Shares;
(d) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus
any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since the respective dates as
of which information is given in the Initial Registration
Statement, any Rule 462(b) Registration Statement and the
Prospectus, there has not been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any
material adverse change, or any development involving a
prospective material adverse change, in or affecting the general
affairs, management, financial position, shareholders' equity or
results of operations of the Company and its subsidiaries taken as
a whole, otherwise than as set forth or contemplated in the
Prospectus (as used herein, "subsidiaries" shall include any
entities in which the Company owns, directly or indirectly, any
controlling or general partnership interest or a majority of the
economic interest);
(e) The Company and its subsidiaries have good and
marketable title in fee simple to all real property described in
the Prospectus as owned by them, and good and marketable title to
all personal property (including interests in partnerships or
other entities) owned by them, in each case free and clear of all
liens, encumbrances and defects except such as are described in
the Prospectus or such as do not materially affect the value of
such property and do not interfere with the use made and proposed
to be made of such property by the Company and its subsidiaries;
and any real property and buildings held under lease by the
Company and its subsidiaries and described in the Prospectus are
held by them under valid, subsisting and enforceable leases with
such exceptions as are not material and do not interfere with the
use made and proposed to be made of such property and buildings by
the Company and its subsidiaries;
-4-
<PAGE>
(f) The Company has been duly organized and is validly
existing as a real estate investment trust of unlimited duration
with transferrable shares of beneficial interest in good standing
under the laws of the State of Maryland, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Prospectus, and has been duly
qualified for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction; and each subsidiary of the Company has been duly
organized and is validly existing, with respect to subsidiaries
that are corporations or limited partnerships, in good standing
under the laws of its jurisdiction of organization;
(g) The Company has an authorized capitalization as set
forth in the documents incorporated by reference into the
Prospectus, and all of the issued Shares of Beneficial Interest of
the Company have been duly and validly authorized and issued, are
fully paid and, except as described in the Prospectus,
nonassessable and conform to the description of the Shares of
Beneficial Interest contained in the Prospectus; and all of the
issued shares of capital stock of each subsidiary of the Company
have been duly and validly authorized and issued, are fully paid
and, with respect to subsidiaries that are corporations,
nonassessable and (except as otherwise set forth in the
Prospectus) are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims;
(h) The unissued Shares to be issued and sold by the
Company to the Underwriters hereunder have been duly and validly
authorized and, when the Firm Shares are issued and delivered
against payment therefor pursuant to this Agreement and the
Pricing Agreement with respect to such Designated Shares and, in
the case of any Optional Shares, pursuant to Over-allotment
Options (as defined in Section 3 hereof) with respect to such
Shares, such Designated Shares, will be duly and validly issued
and fully paid and, except as described in the Prospectus,
nonassessable; the Shares conform to the description thereof
contained in the Registration Statement; and the Designated Shares
will conform to the description thereof contained in the
Prospectus as amended or supplemented with respect to such
Designated Shares;
(i) The issue and sale of the Shares by the Company and
the compliance by the Company with all of the provisions of this
Agreement, any Pricing Agreement and each Over-allotment Option,
if any, and the consummation of the transactions herein and
therein contemplated will not (i) conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which
any of the property or assets of the Company or any of its
subsidiaries is subject, other than such breaches or violations
which, if determ ined adversely to the Company or any of its
subsidiaries, would not individually or in the aggregate have a
material adverse effect on the current or future
-5-
<PAGE>
consolidated financial position, shareholders' equity or results
of operations of the Company and its subsidiaries taken as a
whole, (ii) result in any violation of the provisions of the
Restated Declaration of Trust or By-laws of the Company, or (iii)
result in any violation of any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of
their properties, other than violations which, if determined
adversely to the Company or any of its subsidiaries would not
individually or in the aggregate have a material adverse effect on
the current or future consolidated financial position,
shareholders' equity or results of operations of the Company and
its subsidiaries taken as a whole; and no consent, approval,
authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the
issue and sale of the Shares or the consummation by the Company of
the transactions contemplated by this Agreement, any Pricing
Agreement or any Over-Allotment Option, except (A) the
registration under the Act of the Shares, (B) such consents,
approvals, authorizations, orders, registrations or qualifications
as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the
Underwriters and (C) such additional steps as may be required by
the National Association of Securities Dealers, Inc. (the "NASD");
(j) Neither the Company nor any of its subsidiaries is in
violation of its declaration of trust, charter, certificate or
articles of incorporation, partnership agreement or bylaws, as
applicable, or in default in the performance or observance of any
material obligation, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or any
other agreement or instrument to which it is a party or by which
it is bound or to which any of its property or assets is subject;
(k) The statements set forth in the Prospectus under the
caption "Description of Common Shares", insofar as they purport to
constitute a summary of the terms of the Shares of Beneficial
Interest, and under the caption "Federal Income Tax
Considerations", to the extent such statements purport to describe
factual matters or relate to matters of law or regulation or
constitute summaries of documents described therein, are accurate
and complete in all material respects;
(l) Other than as set forth in the Prospectus, there are
no legal or governmental proceedings pending to which the Company
or any of its subsidiaries is a party or of which any property of
the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a material adverse
effect on the current or future consolidated financial position,
shareholders' equity or results of operations of the Company and
its subsidiaries taken as a whole; and, to the best of the
Company's knowledge, no such pro ceedings are threatened or
contemplated by governmental authorities or threatened by others;
-6-
<PAGE>
(m) KPMG Peat Marwick LLP, who have certified the
financial statements filed with the Commission as part of the
Initial Registration Statement, any Rule 462(b) Registration
Statement and the Prospectus, are independent public accountants
with respect to the Company and its subsidiaries as required by
the Act and the rules and regulations of the Commission
thereunder;
(n) The Company has qualified to be taxed as a real
estate investment trust pursuant to Sections 856 through 860 of
the Internal Revenue Code of 1986, as amended (the "Code"), for
its fiscal year ended December 31, 1997 and the Company's present
and contemplated organization, ownership, method of operation,
assets and income are such that the Company is in a position under
present law to so qualify for the fiscal year ending December 31,
1998 and in the future; and the Company is not an open-end
investment company, unit investment trust, closed-end investment
company or face-amount certificate company that is or is required
to be registered under Section 8 of the Investment Company Act of
1940, as amended (the "Investment Company Act"); and
(o) The Company has no knowledge of (a) the presence of
any hazardous substances, hazardous materials, toxic substances or
waste materials (collectively, "Hazardous Materials") on any of
the properties owned by it in violation of law or in excess of
regulatory action levels or (b) any unlawful spills, releases,
discharges or disposal of Hazardous Materials that have occurred
or are presently occurring on or off such properties as a result
of any construction on or operation and use of such properties,
which presence or occurrence would materially adversely affect the
condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company; and in connection
with the construction on or operation and use of the properties
owned by the Company, it has no knowledge of any material failure
to comply with all applicable local, state and federal
environmental laws, regulations, agency requirements, ordinances
and administrative and judicial orders.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Shares and authorization by the Representatives of the release
of the Firm Shares, the several Underwriters propose to offer the Firm
Shares for sale upon the terms and conditions set forth in the Prospectus
as amended or supplemented.
The Company may specify in the Pricing Agreement applicable to any
Designated Shares that the Company thereby grants to the Underwriters the
right (an "Overallotment Option") to purchase at their election up to the
number of Optional Shares set forth in such Pricing Agreement, on the terms
set forth in the paragraph above, for the sole purpose of covering
over-allotments in the sale of the Firm Shares. Any such election to
purchase Optional Shares may be exercised by written notice from the
Representatives to the Company, given within a period specified in the
Pricing Agreement, setting forth the aggregate number of Optional Shares to
be purchased and the date on which such Optional Shares are to be
delivered, as determined by the Representatives but in no event earlier
than the First Time of Delivery (as defined in
-7-
<PAGE>
Section 4 hereof) or, unless the Representatives and the Company otherwise
agree in writing, earlier than or later than the respective number of
business days after the date of such notice set forth in such Pricing
Agreement.
The number of Optional Shares to be added to the number of Firm
Shares to be purchased by each Underwriter as set forth in Schedule I to
the Pricing Agreement applicable to such Designated Shares shall be, in
each case, that proportion of Optional Shares which the number of Firm
Shares to be purchased by such Underwriter under such Pricing Agreement
bears to the aggregate number of Firm Shares (rounded as the
Representatives may determine to the nearest 100 shares). The total number
of Designated Shares to be purchased by all the Underwriters pursuant to
such Pricing Agreement shall be the aggregate number of Firm Shares set
forth in Schedule I to such Pricing Agreement plus the aggregate number of
Optional Shares which the Underwriters elect to purchase.
4. The Firm Shares and the Optional Shares to be purchased by each
Underwriter pursuant to the Pricing Agreement relating thereto, in the form
specified in such Pricing Agreement, will be represented by one or more
definitive global certificates in book-entry form which will be deposited
by or on behalf of the Company with The Depository Trust Company ("DTC") or
its designated custodian. The Company will deliver the Shares to the
Underwriter against payment by such Underwriter or on its behalf of the
purchase price therefor by wire transfer of same day funds, unless
otherwise specified in such Pricing Agreement, (i) with respect to the Firm
Shares, all in the manner and at the place and time and date specified in
such Pricing Agreement or at such other place and time and date as the
Representatives and the Company may agree upon in writing, such time and
date being herein called the " "First Time of Delivery" and (ii) with
respect to the Optional Shares, if any, in the manner and at the time and
date specified by the Representatives in the written notice given by the
Representatives of the Underwriters' election to purchase such Optional
Shares, or at such other time and date as the Representatives and the
Company may agree upon in writing, such time and date, if not the First
Time of Delivery, herein called the "Second Time of Delivery". Each such
time and date for delivery is herein called a "Time of Delivery".
5. The Company agrees with each of the Underwriters of any
Designated Shares:
(a) To prepare the Prospectus as amended and supplemented
in relation to the applicable Designated Shares in a form approved
by the Representatives and to file such Prospectus pursuant to
Rule 424(b) under the Act not later than the Commission's close of
business on the second business day following the execution and
delivery of the Pricing Agreement relating to the applicable
Designated Shares or, if applicable, such earlier time as may be
required by Rule 424(b); to make no further amendment or any
supplement to the Initial Registration Statement, any Rule 462(b)
Registration Statement or the Prospectus as amended or
supplemented after the date of the Pricing Agreement relating to
such Shares and prior to any Time of Delivery for such Shares
which shall be reasonably disapproved by the Representatives for
such Shares promptly after reasonable notice thereof; to advise
the Representatives
-8-
<PAGE>
promptly of any such amendment or supplement after any Time of
Delivery for such Shares and furnish the Representatives with
copies thereof; to file promptly all reports and any definitive
proxy or information statements required to be filed by the
Company with the Commission pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act for so long as the delivery of a
prospectus is required in connection with the offering or sale of
such Shares, and during such same period to advise the
Representatives, promptly after it receives notice thereof, of the
time when any amendment to the Initial Registration Statement or
any Rule 462(b) Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended
Prospectus has been filed with the Commission, of the issuance by
the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Shares, of
the suspension of the qualification of such Shares for offering or
sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Initial
Registration Statement, any Rule 462(b) Registration Statement or
the Prospectus or for additional information; and, in the event of
the issuance of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Shares or
suspending any such qualification, promptly to use its best
efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Shares for
offering and sale under the securities laws of such jurisdictions
as the Representatives may request and to comply with such laws so
as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of the Shares, provided that in connection therewith
the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in
any jurisdiction;
(c) To furnish the Underwriters with copies of the
Prospectus as amended or supplemented in New York City in such
quantities as the Representatives may from time to time reasonably
request, and, if the delivery of a prospectus is required at any
time prior to the expiration of nine months after the time of
issue of the Prospectus in connection with the offering or sale of
the Shares and if at such time any event shall have occurred as a
result of which such Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary during such period to amend
or supplement the Prospectus in order to comply with the Act, to
notify the Representatives and upon their request to prepare and
furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representatives may from time to
time reasonably request of an amended Prospectus or a supplement
to such Prospectus which will correct such statement or omission
or effect such compliance;
-9-
<PAGE>
(d) To make generally available to its securityholders as
soon as practicable, but in any event not later than eighteen
months after the effective date of the Initial Registration
Statement (as defined in Rule 158(c) under the Act), an earning
statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and
regulations thereunder (including at the option of the Company,
Rule 158);
(e) To furnish to its shareholders as soon as practicable
after the end of each fiscal year an annual report (including a
balance sheet and statements of income, shareholders' equity and
cash flows of the Company and its consolidated subsidiaries
certified by independent public accountants) and, as soon as
practicable after the end of each of the first three quarters of
each fiscal year, consolidated summary financial information of
the Company and its subsidiaries for such quarter in reasonable
detail;
(f) During a period of five years from the date of any
Pricing Agreement to furnish to the Representatives copies of all
reports or other communications (financial or other) furnished to
shareholders, and deliver to the Representatives (i) as soon as
they are available, copies of any reports and financial statements
furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the
Company is listed; and (ii) such additional information concerning
the business and financial condition of the Company as the
Representatives may from time to time reasonably request (such
financial statements to be on a consolidated basis to the extent
the accounts of the Company and its subsidiaries are consolidated
in reports furnished to its shareholders generally or to the
Commission);
(g) To use the net proceeds received by it from the sale
of the Shares pursuant to this Agreement in the manner specified
in the Prospectus under the caption "Use of Proceeds";
(h) To use its best efforts to list, subject to notice of
issuance, the Shares on the New York Stock Exchange;
(i) To continue to elect to qualify as a "real estate
investment trust" under the Internal Revenue Code of 1986, as
amended, and to use its best efforts to continue to meet the
requirements to qualify as a "real estate investment trust";
(j) Not to be or become, at any time prior to the
expiration of three years after the last Time of Delivery, an
open-end investment trust, unit investment trust, closed-end
investment company or face-amount certificate company that is or
is required to be registered under Section 8 of the Investment
Company Act; and
(k) If the Company elects to rely upon Rule 462(b), the
Company shall file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement, and the
Company shall at the time of filing either pay to the
-10-
<PAGE>
Commission the filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the payment of such
fee pursuant to Rule 111(b) under the Act.
6. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing and filing of each
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of producing any
Agreement among Underwriters, this Agreement, any Pricing Agreement, the
Blue Sky Memoranda and any other documents in connection with the offering,
purchase, sale and delivery of the Shares; (iii) all expenses in connection
with the qualification of the Shares for offering and sale under state
securities laws as provided in Section 5(b) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and legal investment
surveys; (iv) all fees and expenses in connection with the listing of the
Shares on the New York Stock Exchange and the filing fees incident to
securing any required review by the NASD of the terms of the sale of the
Shares; (v) the cost of preparing stock certificates; (vi) the cost and
charges of any transfer agent or registrar; and (vii) all other costs and
expenses incident to the performance of its obligations hereunder which are
not otherwise specifically provided for in this Section. It is understood,
however, that, except as provided in this Section, and in Sections 8 and 11
hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, stock transfer taxes on resale of any
of the Shares by them and any advertising expenses connected with any
offers they may make.
7. The obligations of the Underwriters of any Designated Shares
under the Pricing Agreement relating to such Designated Shares shall be
subject, in the discretion of the Representatives, to the condition that
all representations and warranties and other statements of the Company in
or incorporated by reference in the Pricing Agreement relating to such
Designated Shares are, at and as of such Time of Delivery for such
Designated Shares, true and correct, the condition that the Company shall
have performed all of its obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation
to such Designated Shares shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time
period prescribed for such filing by the rules and regulations
under the Act and in accordance with Section 5(a) hereof; if the
Company has elected to rely upon Rule 462(b), the Rule 462(b)
Registration Statement shall have become effective by 10:00 P.M.,
Washington D.C. time, on the date of this Agreement; no stop order
suspending the effectiveness of any Registration Statement or any
part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission;
and all requests for additional information on the part of the
Commission shall have been complied with to the Representatives'
reasonable satisfaction;
-11-
<PAGE>
(b) Sullivan & Cromwell, counsel for the Underwriters,
shall have furnished to the Representatives such opinion or
opinions, dated each Time of Delivery for such Designated Shares,
with respect to the matters covered in paragraphs (i), (vii), (xi)
and (xiv) of subsection (c) below as well as such other matters as
the Representatives may reasonably request, and such counsel shall
have received such papers and information as they may reasonably
request to enable them to pass upon such matters; in rendering
such opinion, Sullivan & Cromwell may rely as to matters governed
by the laws of the State of Maryland on Mayer, Brown & Platt or
other counsel reasonably satisfactory to Sullivan & Cromwell and
the Representatives;
(c) Mayer, Brown & Platt, counsel for the Company, shall
have furnished to the Representatives their written opinion, dated
each Time of Delivery for such Designated Shares, in form and
substance satisfactory to the Representatives, to the effect that:
(i) The Company is a validly existing real
estate trust duly organized and existing under and by
virtue of the laws of the State of Maryland, and is in
good standing with the Maryland State Department of
Assessments and Taxation with power and authority to own
its properties and conduct its business as described in
the Prospectus;
(ii) The Company has an authorized
capitalization as set forth in the documents incorporated
by reference in the Prospectus as amended or
supplemented, and all of the issued Shares of Beneficial
Interest of the Company (including the Designated Shares
being delivered at such Time of Delivery) have been duly
authorized and validly issued and are fully paid and,
except as described in the Prospectus, nonassessable; the
Designated Shares conform to the description thereof
contained in the Prospectus as amended or supplemented;
and no preemptive rights of stockholders exist under the
Maryland General Corporation Law with respect to any of
the Shares or the issue and sale or distribution thereof;
(iii) The Company has been duly qualified for
the transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to
require such qualification, or is subject to no material
liability or disability by reason of the failure to be so
qualified in any such jurisdiction (such counsel being
entitled to rely in respect of the opinion in this clause
upon opinions of local counsel and in respect of matters
of fact upon certificates of public officials or officers
of the Company, provided that such counsel shall state
that they believe that both the Representatives and they
are justified in relying upon such opinions and
certificates);
(iv) Each subsidiary of the Company set forth on
Exhibit A hereto has been duly organized and is validly
existing, with respect to subsidiaries that are
corporations or limited partnerships, in good standing
under the laws of its jurisdiction of organization; and
all of the
-12-
<PAGE>
issued shares of capital stock of each such subsidiary
have been duly and validly authorized and issued, are
fully paid and, with respect to subsidiaries that are
corporations, nonassessable, and (except as otherwise set
forth in the Prospectus as amended or supplemented) are
owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims
(such counsel being entitled to rely in respect of the
opinion in this clause upon opinions of local counsel and
in respect of matters of fact upon certificates of public
officials or officers of the Company or any of its
subsidiaries, provided that such counsel shall state that
they believe that both the Representatives and they are
justified in relying upon such opinions and
certificates);
(v) To the best of such counsel's knowledge and
other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which
any property of the Company or any of its subsidiaries is
the subject which, if determined adversely to the Company
or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the
consolidated financial position, shareholders' equity or
results of operations of the Company and its subsidiaries
taken as a whole; and, to the best of such counsel's
knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others;
(vi) This Agreement and the Pricing Agreement
with respect to the Designated Shares have been duly
authorized, executed and delivered by the Company;
(vii) The issue and sale of the Designated
Shares being delivered at such Time of Delivery and the
compliance by the Company with all of the provisions of
this Agreement and the Pricing Agreement with respect to
the Designated Shares and the consummation of the
transactions herein contemplated will not (i) conflict
with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement,
lease or other material agreement or instrument known to
such counsel to which the Company or any of its
subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is
subject, other than such breaches or violations which, if
determined adversely to the Company or any of its
subsidiaries, would not individually or in the aggregate
have a material adverse effect on the current or future
consolidated financial position, shareholders' equity or
results of operations of the Company and its subsidiaries
taken as a whole, (ii) result in any violation of the
provisions of the Restated Declaration of Trust or
By-laws, (iii) result in the violation of any statute or
any order, rule or regulation known to such counsel of
any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries
or any of its properties, other than violations which, if
-13-
<PAGE>
determined adversely to the Company or any of its
subsidiaries would not individually or in the aggregate
have a material adverse effect on the current or future
consolidated financial position, shareholders' equity or
results of operations of the Company and its subsidiaries
taken as a whole;
(viii) No consent, approval, authorization,
order, registration or qualification of or with any such
court or governmental agency or body is required for the
issue and sale of the Designated Shares being delivered
at such Time of Delivery or the consummation by the
Company of the transactions contemplated by this
Agreement or such Pricing Agreement, except the
registration under the Act of the Designated Shares, such
consents, approvals, authorizations, orders,
registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the
purchase and distribution of the Designated Shares by the
Underwriters and such additional steps as may be required
by the NASD;
(ix) Neither the Company nor any of its
subsidiaries is in violation of its declaration of trust,
charter, certificate or articles of incorporation,
partnership agreement or bylaws, as applicable, or in
default in the performance or observance of any material
obligation, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease
or any other agreement or instrument known to such
counsel to which it is a party or by which it is bound or
to which any of its property or assets is subject;
(x) The statements under the captions
"Description of Common Shares" and "Federal Income Tax
Considerations" in the Prospectus, to the extent such
statements relate to matters of law or regulation or
constitute summaries of documents described therein, are
accurate and complete in all material respects;
(xi) The Company has qualified to be taxed as a
real estate investment trust pursuant to Sections 856
through 860 of the Code for its taxable year ended
December 31, 1997, and the Company's present and
contemplated organization, ownership, method of
operation, assets and income are such that the Company is
in a position under present law to so qualify for the
fiscal year ending December 31, 1998 and in the future;
and the Company is not an open-end investment company,
unit investment trust, closed-end investment company or
face-amount certificate company that is or is required to
be registered under Section 8 of the Investment Company
Act;
(xii) The documents incorporated by reference in
the Prospectus as amended or supplemented (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion), when they
became effective or were filed with the Commission, as
the case may be, complied as to form in all material
-14-
<PAGE>
respects with the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the
Commission thereunder; and they have no reason to believe
that any of such documents, when they became effective or
were so filed, as the case may be, contained, in the case
of a registration statement which became effective under
the Act, 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, in the case of other documents which were
filed under the Act or the Exchange Act with the
Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to
make the statements therein, in the light of the
circumstances under which they were made when such
documents were so filed, not misleading; and
(xiii) The Registration Statement and the
Prospectus and any further amendments and supplements
thereto made by the Company prior to such Time of
Delivery (other than the financial statements and related
schedules therein, as to which such counsel need express
no opinion) comply as to form in all material respects
with the requirements of the Act and the rules and
regulations thereunder; they have no reason to believe
that, as of its effective date, any Registration
Statement or any further amendments thereto made by the
Company prior to such Time of Delivery (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion) 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, as
of its date, the Prospectus or any amendments or
supplements thereto made by the Company prior to such
Time of Delivery (other than the financial statements and
related schedules therein, as to which such counsel need
express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact
necessary to make the statements therein, in the light of
the circumstances under which they were made, not
misleading or that, as of such Time of Delivery, any
Registration Statement or the Prospectus or any further
amendments or supplements thereto made by the Company
prior to such Time of Delivery (other than the financial
statements and related schedules therein, as to which
such counsel need express no opinion) contains an untrue
statement of a material fact or omits to state a material
fact necessary to make the statements therein, in the
light of the circumstances under which they were made,
not misleading; and they do not know of any amendment to
any Registration Statement required to be filed or of any
contracts or other documents of a character required to
be filed as an exhibit to any Registration Statement or
required to be described in any Registration Statement or
the Prospectus which are not filed or described as
required.
In rendering such opinion, Mayer, Brown & Platt may rely as to
matters governed by the laws of states other than Illinois,
Maryland, New York or Federal laws on local counsel in such
jurisdictions, provided that in each case
-15-
<PAGE>
Mayer, Brown & Platt shall state that they believe that they and
the Underwriters are reasonably justified in relying on such other
counsel. In rendering the opinions contained in paragraphs (x)
(insofar as said opinion refers to information in the Prospectus
under the caption "Federal Income Tax Considerations") and (xi),
such opinions may be based upon (a) the Code and the rules and
regulations promulgated thereunder and the interpretations of the
Code and such regulations by the courts and the Internal Revenue
Service, all as they are in effect and exist at the time of this
opinion, (b) Maryland and Delaware law existing and applicable to
the Company, (c) facts and other matters set forth in the
Prospectus, (d) the provisions of the Restated Declaration of
Trust and the agreements relating to the properties owned by the
Company, and (e) certain statements and representations as to
factual matters made by the Company to Mayer, Brown & Platt as set
forth in an attachment thereto;
(d) On the date of the Pricing Agreement for such
Designated Shares at a time prior to the execution of the Pricing
Agreement with respect to the Designated Shares and also at each
Time of Delivery for such Designated Shares, KPMG Peat Marwick LLP
shall have furnished to the Representatives a letter or letters,
dated the respective dates of delivery thereof, in form and
substance satisfactory to the Representatives, to the effect set
forth in Annex I hereto;
(e) (i) Neither the Company nor any of its subsidiaries
shall have sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus as amended on or prior to the date of the Pricing
Agreement relating to the Designated Shares any loss or
interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree,
other than as set forth or contemplated in the Prospectus as
amended on or prior to the date of the Pricing Agreement relating
to the Designated Shares, and (ii) since the respective dates as
of which information is given in the Prospectus as amended on or
prior to the date of the Pricing Agreement relating to the
Designated Shares, there shall not have been any change in the
capital stock or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as
set forth or contemplated in the Prospectus as amended on or prior
to the date of the Pricing Agreement relating to the Designated
Shares, the effect of which, in any such case described in Clause
(i) or (ii), is in the judgment of the Representatives so material
and adverse as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of the Shares being
delivered at such Time of Delivery on the terms and in the manner
contemplated in the Prospectus as amended or supplemented relating
to the Designated Shares;
(f) On or after the date of the Pricing Agreement
relating to the Designated Shares there shall not have occurred
any of the following: (i) a
-16-
<PAGE>
suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (ii) a suspension or
material limitation in trading in the Company's securities on the
New York Stock Exchange; (iii) a general moratorium on commercial
banking activities declared by either Federal or New York State
authorities; or (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United
States of a national emergency or war, if the effect of any such
event specified in this Clause (iv) in the judgment of the
Representatives makes it impracticable or inadvisable to (x)
commence or continue the offering of the units of Equity Investor
Fund Cohen & Steers Realty Majors Portfolio (A Unit Investment
Trust) (the "Trust") to the public or (y) enforce contracts for
the sale of the units of the Trust;
(g) The Shares to be sold by the Company at such Time of
Delivery shall have been duly listed, subject to notice of
issuance, on the New York Stock Exchange; and
(h) The Company shall have furnished or caused to be
furnished to the Representatives at each Time of Delivery
certificates of officers of the Company satisfactory to the
Representatives as to the accuracy of the representations and
warranties of the Company herein at and as of such Time of
Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (f)
of this Section and as to such other matters as the
Representatives may reasonably request.
8. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Shares, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action
or claim as such expenses are incurred; provided, however, that the Company
shall not be liable in any such case to the extent that any such loss,
claim, damage or liability (or action in respect thereof) arises out of or
is based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as
amended or supplemented or any other prospectus relating to the Shares, or
any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by any Underwriter of
Designated Shares through the Representatives expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject,
-17-
<PAGE>
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Shares, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented or any other prospectus relating to the Shares, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company
for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party other than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party under such subsection
for any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No
indemnifying or indemnified party shall, without the written consent of the
other party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the other party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the other party from all liability
arising out of such action or claim and (ii) does not include a statement
as to or an admission of fault, culpability or a failure to act, by or on
behalf of the other party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
-18-
<PAGE>
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters of Designated Shares on the other from the
offering of the Designated Shares to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, the
allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice
required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company on the one hand and the Underwriters
of the Designated Shares on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one
hand and the Underwriters of the Designated Shares on the other shall be
deemed to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by the Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the Underwriters on
the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed
to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the applicable Designated Shares
underwritten by it 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 by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters of
Designated Shares in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 8 shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section 8 shall be in addition to any
liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer
-19-
<PAGE>
and trustee of the Company and to each person, if any, who controls the
Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Firm Shares or Optional Shares which it has agreed to purchase
under the Pricing Agreement relating to such Shares, the Representatives
may in their discretion arrange for themselves or another party or other
parties to purchase such Shares on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives
do not arrange for the purchase of such Firm Shares or Optional Shares, as
the case may be, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to the Representatives to purchase such Shares on such terms.
In the event that, within the respective prescribed periods, the
Representatives notify the Company that they have so arranged for the
purchase of such Shares, or the Company notifies the Representatives that
it has so arranged for the purchase of such Shares, the Representatives or
the Company shall have the right to postpone a Time of Delivery for such
Shares for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus as amended or supplemented, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus
which in the opinion of the Representatives may thereby be made necessary.
The term "Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such
Designated Shares.
(b) If, after giving effect to any arrangements for the purchase
of the Firm Shares or Optional Shares, as the case may be, of a defaulting
Underwriter or Underwriters by the Representatives and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased does not exceed one-eleventh of the aggregate number of
the Firm Shares or Optional Shares, as the case may be, to be purchased at
the respective Time of Delivery, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the number of Firm
Shares or Optional Shares, as the case may be, which such Underwriter
agreed to purchase under the Pricing Agreement relating to such Designated
Shares and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Firm Shares or Optional
Shares, as the case may be, which such Underwriter agreed to purchase under
such Pricing Agreement) of the Firm Shares or Optional Shares, as the case
may be, of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase
of the Firm Shares or Optional Shares, as the case may be, of a defaulting
Underwriter or Underwriters by the Representatives and the Company as
provided in subsection (a) above, the aggregate number of Firm Shares or
Optional Shares, as the case may be, which remains unpurchased exceeds
one-eleventh of the aggregate number of the Firm Shares or Optional Shares,
as the case may be, to be purchased at the respective Time
-20-
<PAGE>
of Delivery, as referred to in subsection (b) above, or if the Company
shall not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Firm Shares or Optional Shares, as
the case may be, of a defaulting Underwriter or Underwriters, then the
Pricing Agreement relating to such Firm Shares or the Over-allotment Option
relating to such Optional Shares, as the case may be, shall thereupon
terminate, without liability on the part of any non-defaulting Underwriter
or the Company, except for the expenses to be borne by the Company and the
Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several
Underwriters, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain in full force
and effect, regardless of any investigation (or any statement as to the
results thereof) made by or on behalf of any Underwriter or any controlling
person of any Underwriter, or the Company, or any officer or director or
controlling person of the Company, and shall survive delivery of and
payment for the Shares.
11. If any Pricing Agreement or Over-allotment Option shall be
terminated pursuant to Section 9 hereof, the Company shall not then be
under any liability to any Underwriter with respect to the Firm Shares or
Optional Shares with respect to which such Pricing Agreement shall have
been terminated except as provided in Sections 6 and 8 hereof; but, if for
any other reason, Designated Shares are not delivered by or on behalf of
the Company as provided herein, the Company will reimburse the Underwriters
through the Representatives for all out-of-pocket expenses approved in
writing by the Representatives, including fees and disbursements of
counsel, reasonably incurred by the Underwriters in making preparations for
the purchase, sale and delivery of such Designated Shares, but the Company
shall then be under no further liability to any Underwriter with respect to
such Designated Shares except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Shares shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon
any statement, request, notice or agreement on behalf of any Underwriter
made or given by such Representatives jointly or by such of the
Representatives, if any, as may be designated for such purpose in the
Pricing Agreement.
All statements, requests, notices and agreements hereunder shall
be in writing, and if to the Underwriters shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Representatives
as set forth in the Pricing Agreement; and if to the Company shall be
delivered or sent by mail, telex or facsimile transmission to the address
of the Company set forth in the Initial Registration Statement, Attention:
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire,
which address will be supplied
-21-
<PAGE>
to the Company by the Representatives upon request. Any such statements,
requests, notices or agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding
upon, and inure solely to the benefit of, the Underwriters, the Company
and, to the extent provided in Sections 8 and 10 hereof, the officers and
directors of the Company and each person who controls the Company or any
Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement or any such Pricing Agreement. No
purchaser of any of the Shares from any Underwriter shall be deemed a
successor or assign by reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, the term "business day" shall mean any day when the Commission's
office in Washington, D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
16. This Agreement and each Pricing Agreement may be executed by
any one or more of the parties hereto in any number of counterparts, each
of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please
sign and return to us six counterparts hereof.
Very truly yours,
Security Capital Pacific Trust
By:----------------------------------
Name:
Title:
Accepted as of the date hereof:
Merrill Lynch, Pierce, Fenner & Smith Incorporated
By:------------------------------------------
Name:
Title:
On behalf of each of the Underwriters
-22-
<PAGE>
Exhibit A
State of
Subsidiary Name Incorporation or Percentage
Organization Owned
- ------------------------------------------- --------------- ----------
SCP Nevada Holdings 1 Incorporated Nevada 100%
SCP Utah Holdings 1 Incorporated Utah 100%
SCP Utah Holdings 2 Incorporated Utah 100%
PTR - California Holdings (1) Incorporated Maryland 100%
PTR - California Holdings (2) Incorporated Maryland 100%
Las Flores Development Company Texas 100%
PTR Holdings (Texas) Incorporated Texas 100%
PTR Multifamily Incorporated Delaware 100%
PTR - New Mexico (1) Incorporated Delaware 100%
SCG Realty Services Incorporated Delaware 100%
PTR - California Holdings (3) Incorporated Delaware 100%
PTR - Multifamily Holdings Incorporated Delaware 100%
PTR - Texas Holdings (1) Incorporated Delaware 100%
SCP Utah Holdings (4) Incorporated Utah 100%
SCP Utah Holdings (5) Incorporated Utah 100%
Texas Advantage Properties Incorporated
(name changed to Spectrum Apartment
Locators Incorporated) Texas 100%
PTR Development Services Incorporated Delaware 100%*
Archstone Financial Services, Inc. Delaware 100%
* The Company owns 100% of the preferred stock of PTR Development
Services, which represents 95% of the outstanding capital stock.
-23-
<PAGE>
Exhibit 99.2
Pricing Agreement
April 23, 1998
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated,
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Security Capital Pacific Trust, a real estate investment trust
organized under the laws of the State of Maryland (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated April 23, 1998 (the "Underwriting
Agreement"), between the Company on the one hand and Merrill Lynch, Pierce,
Fenner & Smith Incorporated on the other hand, to issue and sell to Merrill
Lynch, Pierce, Fenner & Smith Incorporated (the "Underwriter") the Shares
specified in Schedule II hereto (the "Designated Shares"). Each of the
provisions of the Underwriting Agreement is incorporated herein by
reference in its entirety, and shall be deemed to be a part of this
Agreement to the same extent as if such provisions had been set forth in
full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this
Pricing Agreement, except that each representation and warranty which
refers to the Prospectus in Section 2 of the Underwriting Agreement shall
be deemed to be a representation or warranty as of the date of the
Underwriting Agreement in relation to the Prospectus (as therein defined),
and also a representation and warranty as of the date of this Pricing
Agreement in relation to the Prospectus as amended or supplemented relating
to the Designated Shares which are the subject of this Pricing Agreement.
Each reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to
refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined.
The Underwriter intends to deposit the Designated Shares with the
trustee of the Equity Investor Fund Cohen & Steers Realty Majors Portfolio
(A Unit Investment Trust) (the "Trust"), a registered unit investment trust
under the Investment Company Act of 1940, as amended, for which Merrill
Lynch, Pierce, Fenner & Smith Incorporated acts as sponsor and depositor,
in exchange for units in the Trust.
An amendment to the Initial Registration Statement, or a
supplement to the Prospectus, as the case may be, relating to the
Designated Shares, in the form heretofore delivered to you is now proposed
to be filed with the Commission.
-1-
<PAGE>
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees
to issue and sell to each of the Underwriter, and the Underwriter agrees,
severally and not jointly, to purchase from the Company, at the time and
place and at the purchase price to the Underwriter set forth in Schedule II
hereto, the number of Designated Shares set forth in Schedule II hereto.
The Company is advised by the Underwriter that the Underwriter
proposes to deposit the Designated Shares with the trustee of the Trust, a
registered unit investment trust under the Investment Company Act of 1940,
as amended, for which Merrill Lynch, Pierce, Fenner & Smith Incorporated
acts as sponsor and depositor, in exchange for units in the Trust (the
"Offering") as soon after the execution and delivery hereof as in the
judgment of the Underwriter is advisable.
-2-
<PAGE>
If the foregoing is in accordance with your understanding, please
sign and return to us four counterparts hereof, and upon acceptance hereof
by you, this letter and such acceptance hereof, including the provisions of
the Underwriting Agreement incorporated herein by reference, shall
constitute a binding agreement between the Underwriter and the Company.
Very truly yours,
Security Capital Pacific Trust
By:--------------------------------
Name:
Title:
Accepted as of the date hereof:
Merrill Lynch, Pierce, Fenner & Smith Incorporated
By:__________________________________
Name:
Title:
-3-
<PAGE>
SCHEDULE II
Title of Designated Shares: Shares of Beneficial Interest
Number of Designated Shares: 2,049,587
Initial Offering Price to Public:
$22.6875 per Share
Purchase Price by Underwriter:
$21.4964 per Share
Form of Designated Shares:
Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its
designated custodian, to be made available for checking by the
Representatives at least twenty-four hours prior to the Time of
Delivery at the office of DTC.
Specified Funds for Payment of Purchase Price:
Wire transfer of same day funds
Time of Delivery:
9:00 a.m. (New York City time), April 29, 1998
Closing Location:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
-4-
<PAGE>
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants
with respect to the Company and its subsidiaries within the
meaning of the Act and the applicable published rules and
regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if
applicable, financial forecasts and/or pro forma financial
information) examined by them and included or incorporated by
reference in the Registration Statement or the Prospectus comply
as to form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and
the related published rules and regulations thereunder; and, if
applicable, they have made a review in accordance with standards
established by the American Institute of Certified Public
Accountants of the consolidated interim financial statements,
selected financial data, pro forma financial information,
financial forecasts and/or condensed financial statements derived
from audited financial statements of the Company for the periods
specified in such letter, as indicated in their reports thereon,
copies of which have been separately furnished to the
representatives of the Underwriters (the "Representatives");
(iii) They have made a review in accordance with
standards established by the American Institute of Certified
Public Accountants of the unaudited condensed consolidated
statements of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus and/or
included in the Company's quarterly reports on Form 10-Q
incorporated by reference into the Prospectus as indicated in
their reports thereon copies of which have been separately
furnished to the Representatives; and on the basis of specified
procedures including inquiries of officials of the Company who
have responsibility for financial and accounting matters regarding
whether the unaudited condensed consolidated financial statements
referred to in paragraph (vi)(A)(i) below comply as to form in all
material respects with the applicable accounting requirements of
the Act and the Exchange Act and the related published rules and
regulations, nothing came to their attention that caused them to
believe that the unaudited condensed consolidated financial
statements do not comply as to form in all material respects with
the applicable accounting requirements of the Act and the Exchange
Act and the related published rules and regulations;
(iv) The unaudited selected financial information with
respect to the consolidated results of operations and financial
position of the Company for the five most recent fiscal years
included in the Prospectus and included or incorporated by
reference in Item 6 of the Company's Annual Report on Form 10-K
for the most recent fiscal year agrees with the corresponding
amounts (after restatement where applicable) in the audited
consolidated financial
-5-
<PAGE>
statements for such five fiscal years which were included or
incorporated by reference in the Company's Annual Reports on Form
10-K for such fiscal years;
(v) They have compared the information in the Prospectus
under selected captions with the disclosure requirements of
Regulation S-K and on the basis of limited procedures specified in
such letter nothing came to their attention as a result of the
foregoing procedures that caused them to believe that this
information does not conform in all material respects with the
disclosure requirements of items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting
an examination in accordance with generally accepted auditing
standards, consisting of a reading of the unaudited financial
statements and other information referred to below, a reading of
the latest available interim financial statements of the Company
and its subsidiaries, inspection of the minute books of the
Company and its subsidiaries since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and
such other inquiries and procedures as may be specified in such
letter, nothing came to their attention that caused them to
believe that:
(A) (i) the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the
Prospectus and/or included or incorporated by reference
in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus do not comply
as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the
related published rules and regulations, or (ii) any
material modifications should be made to the unaudited
condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows
included in the Prospectus or included in the Company's
Quarterly Reports on Form 10-Q incorporated by reference
in the Prospectus, for them to be in conformity with
generally accepted accounting principles;
(B) any other unaudited income statement data
and balance sheet items included in the Prospectus do not
agree with the corresponding items in the unaudited
consolidated financial statements from which such data
and items were derived, and any such unaudited data and
items were not determined on a basis substantially
consistent with the basis for the corresponding amounts
in the audited consolidated financial statements included
or incorporated by reference in the Company's Annual
Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which
were not included in the Prospectus but from which were
derived the unaudited condensed financial statements
referred to in clause (A) and any unaudited income
statement data and balance sheet items included in
-6-
<PAGE>
the Prospectus and referred to in Clause (B) were not
determined on a basis substantially consistent with the
basis for the audited financial statements included or
incorporated by reference in the Company's Annual Report
on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated
condensed financial statements included or incorporated
by reference in the Prospectus do not comply as to form
in all material respects with the applicable accounting
requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have
not been properly applied to the historical amounts in
the compilation of those statements;
(E) as of a specified date not more than five
days prior to the date of such letter, there have been
any changes in the consolidated capital stock (other than
issuances of capital stock upon exercise of options and
stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in
each case which were outstanding on the date of the
latest balance sheet included or incorporated by
reference in the Prospectus) or any increase in the
consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net
current assets or stockholders' equity or other items
specified by the Representatives, or any increases in any
items specified by the Representatives, in each case as
compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus,
except in each case for changes, increases or decreases
which the Prospectus discloses have occurred or may occur
or which are described in such letter; and
(F) for the period from the date of the latest
financial statements included or incorporated by
reference in the Prospectus to the specified date
referred to in Clause (E) there were any decreases in
consolidated net revenues or operating profit or the
total or per share amounts of consolidated net income or
other items specified by the Representatives, or any
increases in any items specified by the Representatives,
in each case as compared with the comparable period of
the preceding year and with any other period of
corresponding length specified by the Representatives,
except in each case for increases or decreases which the
Prospectus discloses have occurred or may occur or which
are described in such letter; and
(vii) In addition to the examination referred to in their
report(s) included or incorporated by reference in the Prospectus
and the limited procedures, inspection of minute books, inquiries
and other procedures referred to in paragraphs (iii) and (vi)
above, they have carried out certain specified procedures, not
constituting an examination in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages
and financial information specified by the Representatives which
are derived from the general accounting records of the Company and
its subsidiaries, which
-7-
<PAGE>
appear in the Prospectus (excluding documents incorporated by
reference), or in Part II of, or in exhibits and schedules to, the
Registration Statement specified by the Representatives or in
documents incorporated by reference in the Prospectus specified by
the Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting records
of the Company and its subsidiaries and have found them to be in
agreement.
All references in this Annex II to the Prospectus shall
be deemed to refer to the Prospectus (including the documents incorporated
by reference therein) as defined in the Underwriting Agreement as of the
date of the letter delivered on the date of the Pricing Agreement for
purposes of such letter and to the Prospectus as amended or supplemented
(including the documents incorporated by reference therein) in relation to
the applicable Designated Shares for purposes of the letter delivered at
the Time of Delivery for such Designated Shares.
-8-
<PAGE>
