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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): AUGUST 5, 1997
THE PRICE REIT, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
MARYLAND 1-13432 52-1746059
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(STATE OR OTHER (COMMISSION FILE NUMBER) (IRS EMPLOYER
JURISDICTION OF IDENTIFICATION
INCORPORATION NO.)
7979 IVANHOE AVENUE 92037
LA JOLLA, CALIFORNIA (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (619) 551-2320
NONE
(FORMER NAME OF FORMER ADDRESS, IF CHANGED SINCE LAST REPORT)
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ITEM 5. OTHER EVENTS.
On November 25, 1996 The Price REIT, Inc. (the "Company") filed a
registration statement (File No. 333-16787) on Form S-3 with the Securities and
Exchange Commission (the "Commission") relating to the public offering,
pursuant to Rule 415 under the Securities Act of 1933, as amended, of up to an
aggregate of $175,000,000 in securities of the Company (the "Registration
Statement"). On December 23, 1996, the Commission declared the Registration
Statement, as amended by Amendment No. 1, effective. (The Registration
Statement and definitive prospectus contained therein are collectively referred
to as the "Prospectus.")
The Company filed on August 7, 1997 a supplement to the Prospectus,
dated August 5, 1997, relating to the issuance and sale of up to 1,000,000
shares of the Company's common stock, $.01 par value per share (the "Common
Stock Supplement"), with the Commission. In connection with the filing of the
Common Stock Supplement with the Commission, the Company is filing certain
exhibits as part of this Form 8-K. See "Item 7. Financial Statements and
Exhibits."
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
The following exhibits are filed with this report on Form 8-K:
<TABLE>
<CAPTION>
Exhibit No. Description
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<S> <C>
1.1 Underwriting Agreement between the Company and Salomon Brothers
Inc, dated August 5, 1997, with respect to the issuance and sale
by the Company of up to 1,000,000 shares of the Company's common
stock.
5.1 Opinion of Ballard Spahr Andrews & Ingersoll regarding the
validity of the common stock.
8.1 Opinion of Gibson, Dunn & Crutcher LLP regarding certain tax
matters.
23.1 Consent of Ballard Spahr Andrews & Ingersoll (included as part
of Exhibit 5.1).
23.2 Consent of Gibson, Dunn & Crutcher LLP (included as part of
Exhibit 8.1).
</TABLE>
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
THE PRICE REIT, INC.
Date: August 6, 1997 By: /s/ George M. Jezek
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George M. Jezek
Chief Financial Officer
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Exhibit 1.1
THE PRICE REIT, INC.
1,000,000 SHARES
COMMON STOCK
($.01 PAR VALUE)
UNDERWRITING AGREEMENT
New York, New York
August 5, 1997
Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Ladies and Gentlemen:
The Price REIT, Inc., a Maryland corporation (the "Company"), proposes
to sell to Salomon Brothers Inc (the "Underwriter"), 1,000,000 shares of Common
Stock, $.01 par value, of the Company ("Common Stock"). The aforesaid 1,000,000
shares of Common Stock described above to be purchased by the Underwriter are
hereinafter called the "Securities."
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, the Underwriter as set forth below in this Section
1. Certain terms used in this Section 1 are defined in paragraph (c) hereof.
(a) The Company meets the requirements for use of Form S-3 under
the Securities Act of 1933, as amended (the "Securities Act") and has
filed with the Securities and Exchange Commission (the "Commission") a
registration statement (file number 333-16787) dated November 25, 1996,
on such Form, including a basic prospectus, for registration under the
Act of the offering and sale from time to time of the Company's equity
and debt securities, including the Securities, and on December 23, 1996,
the Company filed Amendment No. 1 thereto, which has previously been
furnished to you. Such registration statement, as so amended, has become
effective under the Act. The offering of the Securities is a Delayed
Offering and, although the Basic Prospectus may not include all the
information with respect to the Securities and the offering thereof
required by the Act and the rules thereunder to be included in the Final
Prospectus, the Basic Prospectus includes all such information required
by the Act and the rules thereunder to be included therein as of
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the Effective Date. The Company will next file with the Commission
pursuant to Rules 415 and 424(b)(2) or (5) a final supplement to the
form of prospectus included in such registration statement relating to
the Securities and the offering thereof. As filed, such final prospectus
supplement shall include all required information with respect to the
Securities and the offering thereof and, except to the extent the
Underwriter shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution
Time or, to the extent not completed at the Execution Time, shall
contain only such specific additional information and other changes
(beyond that contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the Execution Time,
will be included or made therein.
(b) On the Effective Date, the Registration Statement did or
will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date, the Final
Prospectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Act and the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the
respective rules thereunder; on the Effective Date, the Registration
Statement did not or will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; and,
on the Effective Date, the Final Prospectus, if not filed pursuant to
Rule 424(b), did not or will not, and on the date of any filing pursuant
to Rule 424(b) and on the Closing Date, the Final Prospectus (together
with any supplement thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
Company makes no representations or warranties as to the information
contained in or omitted from the Registration Statement or the Final
Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Company by or on
behalf of the Underwriter specifically for inclusion in the Registration
Statement or the Final Prospectus (or any supplement thereto). The Final
Prospectus delivered to the Underwriter for use in connection with this
offering is identical to the electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T promulgated by the Commission.
(c) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "the Effective Date" shall mean
each date that the Registration Statement and any post-effective
amendment or amendments thereto became or become effective and each date
after the date hereof on which a document incorporated by reference in
the Registration Statement is filed. "Execution Time" shall mean the
date and time that this Agreement is executed and delivered by the
parties hereto. "Basic Prospectus" shall mean the prospectus referred to
in paragraph (a) above contained in the Registration Statement at the
Effective Date. "Preliminary Final Prospectus" shall mean any
preliminary prospectus supplement to
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the Basic Prospectus which describes the Securities and the offering
thereof and is used prior to filing of the Final Prospectus. "Final
Prospectus" shall mean the prospectus supplement relating to the
Securities that is first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus. "Registration
Statement" shall mean the registration statement referred to in
paragraph (a) above, including incorporated documents, exhibits and
financial statements, as amended at the Execution Time and, in the event
any post-effective amendment thereto becomes effective prior to the
Closing Date (as hereinafter defined), shall also mean such registration
statement as so amended. "Rule 415", "Rule 424" and "Regulation S-K"
refer to such rules or regulation under the Act. Any reference herein to
the Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 which were filed under the Exchange Act on or before the
Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus shall be deemed to refer to and include the filing of
any document under the Exchange Act after the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may
be, deemed to be incorporated therein by reference. A "Delayed Offering"
shall mean an offering of securities pursuant to Rule 415 which does not
commence promptly after the effective date of a registration statement,
with the result that only information required pursuant to Rule 415 need
be included in such registration statement at the effective date thereof
with respect to the securities so offered.
(d) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Maryland, is duly qualified to do business and is in good standing as
a foreign corporation in each jurisdiction in which its ownership or
lease of property or the conduct of its business requires such
qualification (except where the failure to so qualify would not have a
material adverse effect on the consolidated financial position,
stockholders' equity, results of operations, business affairs or
business prospects of the Company), and has all power and authority
necessary to own or hold its properties and to conduct the business in
which it is engaged; and the Company has no interest in any entity or
person other than (i) its ownership of all of the outstanding capital
stock of Price/Texas, Inc., a Texas corporation ("Price Texas"), (ii)
its ownership of all of the limited partnership interests in
Price/Baybrook, Ltd., a Texas limited partnership ("Price/Baybrook"),
Price/Baybrook, Ltd.'s ownership of 50% of the membership
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interests in Price/Fry Limited Liability Company, a Texas limited
liability company ("Price/Fry"), and the ownership by Price Texas of all
of the general partnership interests of Price/Baybrook, Ltd., (iii) its
90% membership interest in Smithtown Venture Limited Liability Company,
a New York limited liability company ("Smithtown"), (iv) its 50%
partnership interest in Centrepoint Associates, L.L.P., an Arizona
limited liability partnership, (v) its 50% general partnership interest
in Hayden Plaza North Associates, an Arizona general partnership, and
(vi) its 75% membership interest in Bridgewater Community Retail Center,
LLC, a New Jersey limited liability company (collectively, the
"Affiliates," and the Company's interests in the Affiliates are referred
to herein collectively as the "Interests").
(e) Each of the Affiliates has been duly organized and is validly
existing as a corporation, limited liability company or partnership, as
the case may be, and in good standing under the laws of its jurisdiction
of organization, is duly qualified to do business and is in good
standing as a foreign corporation, limited liability company or
partnership, as the case may be, in each jurisdiction in which its
respective ownership or lease of property or the conduct of its business
requires such qualification (except where the failure to so qualify
would not have a material adverse effect on the consolidated financial
position, stockholders' equity, results of operations, business affairs
or business prospects of the Company), and has all power and authority
necessary to own or hold its respective properties and to conduct the
business in which it is engaged; and none of the Affiliates, other than
Price/Baybrook, Ltd., is a "significant subsidiary," as such term is
defined in Rule 405 of the rules and regulations promulgated pursuant to
the Securities Act.
(f) The Company has an authorized capitalization as set forth in
the Final Prospectus, and all of the issued shares of capital stock of
the Company have been duly and validly authorized and issued, are fully
paid and non-assessable and conform to the description thereof contained
in the Final Prospectus and were not issued in violation of, and are not
subject to, preemptive or similar rights arising by operation of the
Maryland General Corporation Law (the"MGCL"), or under the charter or
bylaws of the Company or any agreement or instrument, or otherwise; and
the Company's Interests have been duly and validly authorized and issued
and are fully paid and non-assessable and are owned by the Company free
and clear of all liens, encumbrances, equities or claims.
(g) The unissued Securities to be issued and sold by the Company
to the Underwriter hereunder have been duly and validly authorized and,
when issued and delivered against payment therefor as provided herein,
will be duly and validly issued, fully paid and non-assessable, and will
conform to the description thereof contained in
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the Final Prospectus; and the issuance of the Securities is not subject
to preemptive or other similar rights.
(h) This Agreement has been duly authorized, executed and
delivered by the Company.
(i) The execution, delivery and performance of this Agreement by
the Company and the consummation of the transactions contemplated hereby
will not 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, partnership or joint venture
agreement or other agreement or instrument to which the Company or any
of the Affiliates is a party or by which the Company or any of the
Affiliates is bound or to which any of the property or assets of the
Company or any of the Affiliates is subject, nor will such actions
result in any violation of the provisions of the charter or by-laws of
the Company or any governing document of any of the Affiliates or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of the
Affiliates or any of their properties or assets; and except for the
registration of the Securities under the Securities Act and such
consents, approvals, authorizations, registrations or qualifications as
have been obtained or made, or as may be required under the Exchange Act
and applicable state securities laws in connection with the purchase and
distribution of the Securities by the Underwriter, no consent, approval,
authorization or order of, or filing or registration with, any such
court or governmental agency or body is required for the execution,
delivery and performance of this Agreement by the Company and the
consummation of the transactions contemplated hereby.
(j) There are no contracts, agreements or understandings between
the Company and any person granting such person the right to require the
Company to file a registration statement under the Securities Act with
respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration statement
filed by the Company under the Securities Act.
(k) Except as described in the Final Prospectus, the Company has
not sold or issued any Common Stock during the six-month period
preceding the date of the Final Prospectus, including any sales pursuant
to Rule 144A under, or Regulations D or S of, the Securities Act, other
than shares issued pursuant to that certain Purchase Agreement dated as
of January 15, 1997, by and among the Company, Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Dean Witter Reynolds
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Inc. and Sutro & Co. Incorporated, employee benefit plans, qualified
stock options plans, dividend reinvestment plans or other employee
compensation plans.
(l) The Company has not sustained, since the date of the latest
audited financial statements included or incorporated by reference in
the Final 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 Final Prospectus; and, since such date, there has not been any
change in the capital stock or long-term debt of the Company or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company, otherwise than as set forth or contemplated
in the Final Prospectus.
(m) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or
included or incorporated by reference in the Final Prospectus present
fairly the financial condition and results of operations of the entities
purported to be shown thereby, at the dates and for the periods
indicated, and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the
periods involved.
(n) Ernst & Young LLP, who have certified certain financial
statements of the Company, whose report appears in the Final Prospectus
or is incorporated by reference therein and who have delivered the
initial letter referred to in Section 5(e) hereof, are independent
public accountants as required by the Securities Act and the rules and
regulations thereunder, and were independent accountants as required by
the Securities Act and the rules and regulations thereunder, during the
periods covered by the financial statements on which they reported
contained or incorporated in the Final Prospectus.
(o) The Company and the Affiliates have good and marketable title
in fee simple to all real property and good and marketable title to all
personal property identified in the Final Prospectus as being owned by
them, in each case free and clear of all liens, encumbrances and defects
except such as are described in the Final Prospectus or such as do not
materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by
the Company and the Affiliates; and all real property and buildings held
under lease by the Company and the Affiliates are held by them under
valid, subsisting and enforceable leases, with such exceptions as are
not material and do not interfere with
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the use made and proposed to be made of such property and buildings by
the Company and the Affiliates.
(p) The Company and the Affiliates carry, or are covered by,
insurance in such amounts and covering such risks as is adequate for the
conduct of their respective businesses and the value of their respective
properties and as is customary for companies engaged in similar
businesses in similar industries.
(q) There are no legal or governmental proceedings pending to
which the Company or any of the Affiliates is a party or of which any
property or assets of the Company or any of the Affiliates is the
subject which, if determined adversely to the Company or any of the
Affiliates, might have a material adverse effect on the consolidated
financial position, stockholders' equity, results of operations,
business affairs or business prospects of the Company and the
Affiliates; and to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others.
(r) There are no contracts or other documents which are required
to be described in the Final Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the rules and
regulations thereunder, which have not been described in the Final
Prospectus or filed as exhibits to the Registration Statement or
incorporated therein by reference as permitted by the rules and
regulations promulgated pursuant to the Securities Act.
(s) No relationship, direct or indirect, exists between or among
the Company on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company on the other hand, which is
required to be described in the Final Prospectus which is not so
described.
(t) No labor disturbance by the employees of the Company exists
or, to the knowledge of the Company, is imminent which might be expected
to have a material adverse effect on the consolidated financial
position, stockholders' equity, results of operations, business affairs
or business prospects of the Company.
(u) Since the date as of which information is given in the Final
Prospectus, and except as may otherwise be disclosed in the Final
Prospectus, the Company has not (i) issued or granted any security other
than shares issued pursuant to employee benefit plans, qualified stock
options plans, dividend reinvestment plans or other employee
compensation plans, (ii) incurred any liability or obligation, direct or
contingent, other than liabilities and obligations which were incurred
in the ordinary course of business, (iii) entered into any transaction
not in the ordinary course of
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business or (iv) declared or paid any dividend on its capital stock not
in the ordinary course of business.
(v) Neither the Company nor any of the Affiliates (i) is in
violation of its charter, by-laws or other organizational document, as
applicable, (ii) is in default, and no event has occurred which, with
notice or lapse of time or both, would constitute such a default, in the
due performance or observance of any term, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement,
partnership or joint venture agreement or other agreement or instrument
to which it is a party or by which it is bound or to which any of its
properties or assets is subject or (iii) is in violation of any law,
ordinance, governmental rule, regulation or court decree to which it or
its property or assets may be subject or has failed to obtain any
material license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its property or to
the conduct of its business, which default or violation might have a
material adverse effect on the consolidated financial position,
stockholders' equity, results of operations, business affairs or
business prospects of the Company.
(w) There has been no storage, disposal, generation, manufacture,
refinement, transportation, handling or treatment of toxic wastes,
medical wastes, hazardous wastes or hazardous substances by the Company
or any of the Affiliates (or, to the knowledge of the Company, any of
their predecessors in interest) at, upon or from any of the property now
or previously owned or leased by the Company or the Affiliates in
violation of any applicable law, ordinance, rule, regulation, order,
judgment, decree or permit or which would require remedial action under
any applicable law, ordinance, rule, regulation, order, judgment, decree
or permit, except for any violation or remedial action which would not
have, or could not be reasonably likely to have, singularly or in the
aggregate with all such violations and remedial actions, a material
adverse effect on the general affairs, management, financial position,
stockholders' equity or results of operations of the Company; there has
been no material spill, discharge, leak, emission, injection, escape,
dumping or release of any kind onto such property or into the
environment surrounding such property of any toxic wastes, medical
wastes, solid wastes, hazardous wastes or hazardous substances due to or
caused by the Company or any of the Affiliates or with respect to which
the Company or any of the Affiliates have knowledge, except for any such
spill, discharge, leak, emission, injection, escape, dumping or release
which would not have or would not be reasonably likely to have,
singularly or in the aggregate with all such spills, discharges, leaks,
emissions, injections, escapes, dumpings and releases, a material
adverse effect on the general affairs, management, financial position,
stockholders' equity or results of operations of the Company; and the
terms "hazardous wastes", "toxic wastes", "hazardous substances" and
"medical wastes"
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shall have the meanings specified in any applicable local, state,
federal and foreign laws or regulations with respect to environmental
protection.
(x) Neither the Company nor any Affiliate is an "investment
company" within the meaning of such term under the Investment Company
Act of 1940 and the rules and regulations of the Commission thereunder.
(y) The Company has been and is organized in conformity with the
requirements for qualification as a real estate investment trust under
the Internal Revenue Code of 1986, as amended (the "Code"), and its
method of operation has at all times enabled, and its proposed method of
operation will enable, the Company to meet the requirements for taxation
as a real estate investment trust under the Code.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to the Underwriter, and the Underwriter agrees to purchase from
the Company, the Securities at the purchase price of $37.50 per share.
3. Delivery and Payment. Delivery of and payment for the
Securities shall be at 7:00 a.m. (Los Angeles time), on August 11, 1997 at the
offices of Gibson, Dunn & Crutcher LLP, 333 South Grand Avenue, Los Angeles,
California 90071 (or such later date not later than five business days after
such specified date as the Underwriter shall designate), which date and time may
be postponed by agreement between the Underwriter and the Company or as provided
in Section 8 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the Securities
shall be made to the Underwriter for its account against payment by the
Underwriter of the purchase price therefor by wire transfer of immediately
available funds to a bank account designated by the Company not later than two
business days prior to the Closing Date. Delivery of the Securities shall be
made at such location as the Underwriter shall reasonably designate at least one
business day in advance of the Closing Date. Certificates for the Securities
shall be registered in such names and in such denominations as the Underwriter
may request not less than two full business days in advance of the Closing Date.
The Company agrees to have the Securities available for
inspection, checking and packaging by the Underwriter in New York, New York, not
later than 1:00 p.m. on the business day prior to the Closing Date.
4. Agreements. The Company agrees with the Underwriter that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereto, to become
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effective. Prior to the termination of the offering of the Securities,
the Company will not file any amendment to the Registration Statement or
supplement (including the Final Prospectus or any Preliminary Final
Prospectus) to the Basic Prospectus unless the Company has furnished you
a copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object. Subject
to the foregoing sentence, the Company will cause the Final Prospectus,
properly completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed and will provide evidence satisfactory to the
Underwriter of such timely filing. The Company will promptly advise the
Underwriter (i) when the Registration Statement, if not effective at the
Execution Time, and any amendment thereto, shall have become effective,
(ii) when the Final Prospectus shall have been filed with the Commission
pursuant to Rule 424(b), (iii) when, prior to termination of the
offering of the Securities, any amendment to the Registration Statement
shall have been filed or become effective, (iv) of any request by the
Commission for any amendment of the Registration Statement or supplement
to the Final Prospectus or for any additional information, (v) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (vi) of the receipt
by the Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any such
stop order and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, any event occurs as a result
of which the Final Prospectus as then supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall
be necessary to amend the Registration Statement or supplement the Final
Prospectus to comply with the Act or the Exchange Act or the respective
rules thereunder, the Company promptly will (i) prepare and file with
the Commission, subject to the second sentence of paragraph (a) of this
Section 4, an amendment or supplement which will correct such statement
or omission or effect such compliance and (ii) supply any supplemented
Prospectus to you in such quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Underwriter an earnings
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under
the Act.
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(d) The Company will furnish to the Underwriter and counsel for
the Underwriter, without charge, copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus by
the Underwriter or a dealer may be required by the Act, as many copies
of any Preliminary Final Prospectus and the Final Prospectus and any
supplement thereto as the Underwriter may reasonably request.
(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Underwriter may designate and will maintain such qualifications in
effect so long as required for the distribution of the Securities.
(f) The Company will not, for a period of 90 days following the
Execution Time, without the prior written consent of the Underwriter,
offer, sell or contract to sell, or otherwise dispose of, directly or
indirectly, or announce the offering of, any other shares of Common
Stock or any securities convertible into, or exchangeable for, shares of
Common Stock; provided, however, that the Company may issue and sell
Common Stock pursuant to any employee stock option plan, stock ownership
plan or dividend reinvestment plan of the Company in effect at the
Execution Time and the Company may issue Common Stock issuable upon the
conversion of securities or the exercise of warrants outstanding at the
Execution Time.
5. Conditions to the Obligations of the Underwriter. The
obligation of the Underwriter to purchase the Securities shall be subject to the
accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If filing of the Final Prospectus, or any supplement thereto,
is required pursuant to Rule 424(b), the Final Prospectus, and any such
supplement, shall have been filed in the manner and within the time
period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or
threatened.
(b) The Company shall have furnished to the Underwriter:
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<PAGE> 12
(i) the opinion of Gibson, Dunn & Crutcher LLP, counsel
for the Company, dated the Closing Date, to the effect that:
a. The Company is duly qualified as a foreign
corporation to transact business and is in good standing
in the following states: Arizona, California,
Connecticut, Kansas, Maryland, New York, North Carolina,
Oklahoma, Virginia and Texas;
b. The Affiliates are validly existing and in
good standing under the laws of their respective
jurisdictions of organization, and Price/Texas,
Price/Baybrook, Price/Fry and Smithtown have all power
and authority necessary to own or hold their respective
properties and conduct the businesses in which they are
engaged;
c. 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 the Affiliates is a party or of which
any property or assets of the Company or any of the
Affiliates is the subject which, if determined adversely
to the Company or any of the Affiliates, might have a
material adverse effect on the consolidated financial
position, stockholders' equity, results of operations,
business affairs or business prospects of the Company;
and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by
governmental authorities or threatened by others;
d. The Registration Statement was declared
effective under the Act as of the date and time
specified in such opinion, the Final Prospectus was
filed with the Commission pursuant to the subparagraph
of Rule 424(b) specified in such opinion on the date
specified therein and no stop order suspending the
effectiveness of the Registration Statement has been
issued and, to the knowledge of such counsel, no
proceeding for that purpose is pending or threatened by
the Commission;
e. The Registration Statement and the Final
Prospectus and any further amendments or supplements
thereto made by the Company prior to the Closing Date
(other than the financial statements and related
schedules and other financial and statistical data
included therein or omitted therefrom, as to which such
counsel need express no opinion) comply as to form in
all material respects with the
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<PAGE> 13
requirements of the Act and the rules and regulations
thereunder; and the documents incorporated by reference in
the Final Prospectus and any further amendment or supplement
to any such incorporated document made by the Company prior
to the Closing Date (other than the financial statements and
related schedules and other financial and statistical data
included or omitted therefrom, 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 respects with the requirements of
the Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder;
f. The statements contained in the Final
Prospectus under the caption "Federal Income Tax
Considerations," insofar as they describe matters of law,
summaries of legal matters and legal conclusions, are
correct in all material respects;
g. To the best of such counsel's knowledge, there
are no contracts or other documents which are required to be
described in the Final Prospectus or filed as exhibits to
the Registration Statement by the Act or by the rules and
regulations thereunder, which have not been described or
filed as exhibits to the Registration Statement or
incorporated therein by reference as permitted by the rules
and regulations under the Act;
h. This Agreement has been duly executed and
delivered by the Company;
i. The issue and sale of the Securities being
delivered on the Closing Date by the Company and the
compliance by the Company with all of the provisions of this
Agreement and the consummation of the transactions
contemplated hereby will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any agreement or instrument
which is filed as an exhibit to (i) the Company's Form 10-Q
for the fiscal quarter ended March 31, 1997 or (ii) the
Company's Form 10-K for the year ended December 31, 1996
(other than purchase and sale agreements listed as Exhibits
10.38, 10.39 and 10.45 to 10.49 of such Form 10-K), nor will
such actions result in any violation of the provisions of
the charter or by-laws of the Company or governing documents
of any of the Affiliates or any statute or any order, rule
or regulation known to such counsel of
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<PAGE> 14
any court or governmental agency or body having jurisdiction
over the Company or any of its properties or assets; and,
except for the registration of the Securities under the Act
and such consents, approvals, authorizations, registrations
or qualifications as have been obtained or made or may be
required under the Exchange Act and applicable state
securities laws in connection with the purchase and
distribution of the Securities by the Underwriter, no
consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or
body is required for the execution, delivery and performance
of this Agreement by the Company and the consummation of the
transactions contemplated hereby;
j. To the best of such counsel's knowledge, there
are no contracts, agreements or understandings between the
Company and any person granting such person the right to
require the Company to file a registration statement under
the Act with respect to any securities of the Company owned
or to be owned by such person or to require the Company to
include such securities in the securities registered
pursuant to the Registration Statement or in any securities
being registered pursuant to any other registration
statement filed by the Company under the Act; and
k. The Securities have been duly authorized for
listing, subject to official notice of issuance, on the New
York Stock Exchange.
l. The Company has been and is organized in
conformity with the requirements for qualification as a real
estate investment trust under the Code, and its method of
operation has at all times enabled, and its proposed method
of operation as described in the Final Prospectus and as
represented by management will enable, the Company to meet
the requirements for taxation as a real estate investment
trust under the Code.
In giving their opinion, Gibson, Dunn & Crutcher LLP shall
additionally state that, nothing has come to such counsel's
attention that would lead them to believe that the Registration
Statement (except for financial statements and schedules and
other financial and statistical data included or incorporated by
reference therein, as to which counsel need make no statement),
at the time it became effective, 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 Final
14
<PAGE> 15
Prospectus (except for financial statements and schedules and
other financial and statistical data included or incorporated by
reference therein, as to which counsel need make no statement),
at the time the Final Prospectus was issued (unless the term
"Final Prospectus" refers to a prospectus which has been provided
to the Underwriter by the Company for use in connection with the
offering of Securities which differs from the Final Prospectus on
file at the Commission at the time the Registration Statement
becomes effective, in which case at the date of such prospectus),
or at the Closing Date, included or includes an 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.
(ii) The opinion of Ballard Spahr Andrews & Ingersoll,
counsel for the Company with respect to matters of Maryland law,
dated the Closing Date, to the effect that:
a. The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Maryland and has all corporate power
and authority to own, lease and operate its properties as
described in the Final Prospectus, to conduct the business
in which it is engaged and to perform its obligations under
this Agreement;
b. The Securities have been duly authorized for
issuance and sale to the Underwriter pursuant to this
Agreement and, when issued and delivered by the Company
pursuant to this Agreement against payment of the purchase
price therefor, will be validly issued and fully paid and
non-assessable and will conform in all material respects to
the description thereof contained in the Final Prospectus
and will not be subject to preemptive or other similar
rights arising by operation of the MGCL or under the charter
or bylaws of the Company or any agreement or other
instrument known to such counsel;
c. This Agreement has been duly authorized by the
Company;
d. The form of certificate used to evidence the
Securities is in due and proper form and complies with all
applicable statutory requirements under the laws of the
State of Maryland;
15
<PAGE> 16
e. The Company has an authorized capitalization as
set forth in the Final Prospectus, and all of the issued
shares of capital stock of the Company have been duly and
validly authorized and issued, are fully paid and
non-assessable and conform in all material respects to the
description thereof contained in the Final Prospectus and
are not subject to preemptive or other similar rights
arising by operation of the MGCL or under the charter or
bylaws of the Company or any agreement or other instrument
known to such counsel;
f. The information in the Final Prospectus under
the caption "Description of Stock" (except for the
information under the subsection thereof entitled
"Restrictions on Transfer"), to the extent that it
constitutes matters of Maryland law, summaries of legal
matters, documents or proceedings, or legal conclusions, has
been reviewed by them and is correct in all material
respects and the information under "Description of Stock --
Restrictions on Transfer," to the extent that it constitutes
a summary of the provisions of the Company's charter, has
been reviewed by them and is correct in all material
respects.
References to the Final Prospectus in this paragraph (b) include any
supplements thereto at the Closing Date.
In rendering such opinions, (A) Gibson, Dunn & Crutcher LLP may rely as
to matters involving the application of laws of the State of Maryland,
to the extent deemed proper and specified in such opinion, upon the
opinion of Ballard Spahr Andrews & Ingersoll and (B) Gibson, Dunn &
Crutcher LLP and Ballard Spahr Andrews & Ingersoll may rely as to
matters of fact, to the extent deemed proper, on certificates of
responsible officers of the Company and public officials.
(c) The Underwriter shall have received from Latham & Watkins,
counsel for the Underwriter, such opinion or opinions, dated the Closing
Date, with respect to the issuance and sale of the Securities, the
Registration Statement, the Final Prospectus (together with any
supplement thereto) and other related matters as the Underwriter may
reasonably require, and the Company shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass
upon such matters.
(d) The Company shall have furnished to the Underwriter a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement,
16
<PAGE> 17
the Final Prospectus, any supplement to the Final Prospectus and this
Agreement and that:
(i) the representations and warranties of the Company in
this Agreement are true and correct in all material respects on
and as of the Closing Date with the same effect as if made on the
Closing Date and the Company has complied with all the agreements
and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus (exclusive of any
supplement thereto), there has been no material adverse change in
the condition (financial or other), earnings, business or
properties of the Company and its subsidiaries, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto).
(e) (i) At the Closing Date, Ernst & Young LLP shall have
furnished to the Underwriter a letter or letters (which may refer
to letters previously delivered to the Underwriter), dated as of
the Closing Date, in form and substance satisfactory to the
Underwriter.
(ii) In addition, at the Execution Time, Ernst & Young LLP
shall have furnished to the Underwriter a letter or letters,
dated as of the Execution Time, in form and substance
satisfactory to the Underwriter, to the effect set forth above.
(f) Subsequent to the Execution Time or, if earlier, the dates as
of which information is given in the Registration Statement (exclusive
of any amendment thereof) and the Final Prospectus (exclusive of any
supplement thereto), there shall not have been (i) any change or
decrease specified in the letter or letters referred to in paragraph (e)
of this Section 5 or (ii) any change, or any development involving a
prospective change, in or affecting the business or properties of the
Company and its subsidiaries the effect of which, in any case referred
to in clause (i) or (ii) above, is, in the judgment of the Underwriter,
so material and adverse as to make it impractical or inadvisable to
proceed with the offering or delivery of the Securities as
17
<PAGE> 18
contemplated by the Registration Statement (exclusive of any amendment
thereof) and the Final Prospectus (exclusive of any supplement thereto).
(g) Prior to the Closing Date, the Company shall have furnished
to the Underwriter such further information, certificates and documents
as the Underwriter may reasonably request.
(h) On or before the date of this Agreement, the Underwriter
shall have received a lock-up agreement, substantially in the form of
Exhibit A hereto, signed by each of the persons listed on Schedule I
hereto.
(i) Prior to the Closing Time, the securities shall have been
duly listed on the New York Stock Exchange, subject only to official
notice of issuance.
If any condition specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Underwriter and counsel for the Underwriter, this Agreement
and all obligations of the Underwriter hereunder may be canceled at, or at any
time prior to, the Closing Date by the Underwriter. Notice of such cancellation
shall be given to the Company in writing or by telephone or telegraph confirmed
in writing.
The documents required to be delivered by this Section 5 shall be
delivered at the office of Gibson, Dunn & Crutcher LLP, counsel for the Company,
at 333 South Grand Avenue, Los Angeles, California 90071, on the Closing Date.
6. Reimbursement of Underwriter's Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriter set forth in Section 5 hereof is not satisfied,
because of any termination pursuant to Section 9(i) hereof or because of any
refusal, inability or failure on the part of the Company to perform any material
agreement herein or comply with any material provision hereof other than by
reason of a default by the Underwriter, the Company will reimburse the
Underwriter upon demand for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
7. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless the Underwriter, the directors, officers, employees
and agents of the Underwriter and each person who controls the Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or
18
<PAGE> 19
several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the registration
statement for the registration of the Securities as originally filed or in any
amendment thereof, or in the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus, or in any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
the Underwriter specifically for inclusion therein. This indemnity agreement
will be in addition to any liability which the Company may otherwise have.
(b) The Underwriter agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the Registration
Statement, and each person who controls the Company within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity from
the Company to the Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Company by or on behalf of such
Underwriter specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which the Underwriter may otherwise have. The Company acknowledges
that the statements set forth in the last paragraph of the cover page, the
stabilization legend on the inside front cover page and in the second and the
fifth paragraphs under the heading "Underwriting" in the Final Prospectus
constitute the only information furnished in writing by or on behalf of the
Underwriter for inclusion in the documents referred to in the foregoing
indemnity, and you, as the Underwriter, confirm that such statements are
correct.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The
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<PAGE> 20
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and expenses
of any separate counsel retained by the indemnified party or parties except as
set forth below); provided, however, that such counsel shall be satisfactory to
the indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the indemnified
party shall have the right to employ separate counsel (including local counsel),
and the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or
(b) of this Section 7 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriter agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and the Underwriter
may be subject in such proportion as is appropriate to reflect the relative
benefits received by the Company and by the Underwriter from the offering of the
Securities; provided, however, that in no case shall the Underwriter (except as
may be provided in any agreement among underwriters relating to the offering of
the Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Company and the Underwriter shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and of the
Underwriter in connection with the statements or omissions which resulted in
such Losses as well as any other relevant equitable
20
<PAGE> 21
considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses), and
benefits received by the Underwriter shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the cover
page of the Final Prospectus. Relative fault shall be determined by reference to
whether any alleged untrue statement or omission relates to information provided
by the Company or the Underwriter. The Company and the Underwriter agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 7, each person who controls the Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of the Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
8. Default by the Underwriter. If the Underwriter shall fail at
the Closing Time to purchase the Securities which it is obligated to purchase
under this Agreement (the "Defaulted Securities"), the Underwriter shall have
the right to make arrangements for any other underwriter to purchase all, but
not less than all, of the Defaulted Securities in such amounts as may be agreed
upon and upon the terms herein set forth. In the event of a default by the
Underwriter as set forth in this Section 8, the Closing Date shall be postponed
for such period, not exceeding seven days, as the Underwriter shall determine in
order that the required changes in the Registration Statement and the Final
Prospectus or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company for damages occasioned by its default
hereunder.
9. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Underwriter, by notice given to the Company prior
to delivery of and payment for the Securities, if prior to such time (i) there
has been since the date of this Agreement or since the respective dates as of
which information is given in the Registration Statement, any material adverse
effect on the consolidated financial position, stockholders' equity, results of
operations, business affairs or business prospects of the Company, (ii) trading
in the Company's Common Stock shall have been suspended by the Commission or the
New York Stock Exchange or trading in securities generally on the New York Stock
Exchange shall have been suspended or limited or minimum prices shall have been
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<PAGE> 22
established on such Exchange, (iii) a banking moratorium shall have been
declared either by Federal or New York State authorities or (iv) there shall
have occurred any outbreak or escalation of hostilities, declaration by the
United States of a national emergency or war or other calamity or crisis the
effect of which on financial markets is such as to make it, in the judgment of
the Underwriter, impracticable or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Final Prospectus (exclusive of
any supplement thereto).
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriter set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of the Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 7 hereof,
and will survive delivery of and payment for the Securities. The provisions of
Sections 6 and 7 hereof shall survive the termination or cancellation of this
Agreement.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Underwriter, will be mailed,
delivered or telegraphed and confirmed to them, at Salomon Brothers Inc, Seven
World Trade Center, New York, New York 10048; or, if sent to the Company, will
be mailed, delivered or telegraphed and confirmed to it at 145 South Fairfax
Avenue, Fourth Floor, Los Angeles, California 90036, attention of Joseph K.
Kornwasser, fax number (213) 937-8175.
12. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7 hereof,
and no other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
22
<PAGE> 23
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the Underwriter.
Very truly yours,
The Price REIT, Inc.
By: /s/ JOSEPH K. KORNWASSER
------------------------------
Title: President/CEO
------------------------
S-1
<PAGE> 24
The foregoing Agreement is hereby
confirmed and accepted as of the
date set forth above.
Salomon Brothers Inc
By: Salomon Brothers Inc
By: /s/ STEVEN HASON
-----------------------------------
Vice President
S-2
<PAGE> 25
SCHEDULE I
Raymond E. Peet
Joseph K. Kornwasser
George M. Jezek
Thomas Scheers
Roy P. Drachman
William D. Jones
Walter Weisman
Keene Wolcott
<PAGE> 26
EXHIBIT A
_________ __, 1997
Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Re: Proposed Public Offering by The Price REIT, Inc.
Dear Ladies and Gentleman:
The undersigned, a stockholder [and an officer and/or director] of
The Price REIT, Inc., a Maryland corporation (the "Company"), understands that
Salomon Brothers Inc ("Salomon") proposes to enter into an Underwriting
Agreement (the "Underwriting Agreement") with the Company providing for the
public offering of shares (the "Securities") of the Company's common stock, par
value $.01 per share (the "Common Stock"). In recognition of the benefit that
such an offering will confer upon the undersigned as a stockholder [and an
officer and/or director] of the Company, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
undersigned agrees with Salomon Brothers Inc that, during a period of 90 days
from the date of the Underwriting Agreement, the undersigned will not, without
the prior written consent of Salomon, directly or indirectly, (i) offer (or
announce any offering of), pledge (other than a pledge to a lending institution
as collateral or security for a bona fide loan), sell, contract to sell, sell
any option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant for the sale of, or otherwise dispose of or
transfer any shares of the Company's Common Stock or any security convertible
into or exchangeable or exercisable for Common Stock, whether now owned or
hereafter acquired by the undersigned or with respect to which the undersigned
has or hereafter acquires the power of disposition, or file any registration
statement under the Securities Act of 1933, as amended, with respect to any of
the foregoing or (ii) enter into any swap or any other agreement or any
transaction
A-1
<PAGE> 27
that transfers in whole or in part, directly or indirectly, the economic
consequence of ownership of the Common Stock, whether any such swap or
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or other securities, in cash or otherwise.
Very truly yours,
Signature: _________________________
Print Name: _________________________
<PAGE> 1
EXHIBIT 5.1
[ LETTERHEAD OF BALLARD SPAHR ANDREWS & INGERSOLL ]
August 5, 1997
The Price Reit, Inc.
7979 Ivanhoe Avenue
Suite 524
La Jolla, California 92037
Re: The Price Reit, Inc., a Maryland corporation, (the "Company") --
Registration Statement on Form S-3 (Registration No. 333-16787), as
supplemented pertaining to an additional one million (1,000,000)
shares (the "Shares") of common stock, par value one cent ($.01) per
share ("Common Stock")
----------------------------------------------------------------------
Ladies and Gentlemen:
In connection with the registration of the Shares under the Securities Act
of 1933 as amended (the "Act"), by the Company on Form S-3 (Registration No.
333-16787) filed with the Securities and Exchange Commission (the "Commission")
on or about November 25, 1996, as amended, as supplemented to date, including
that certain Prospectus Supplement filed or to be filed on or about the date
hereof (collectively the "Registration Statement"), you have requested our
opinion with respect to the matters set forth below.
We have acted as special Maryland corporate counsel for the Company in
connection with the matters described herein. In our capacity as special
Maryland corporate counsel to the Company, we have reviewed and are familiar
with proceedings taken and proposed to be taken by the Company in connection
with the authorization, issuance and sale of the Shares, and for purposes of
this opinion have assumed such proceedings will be timely completed in the
manner presently proposed. In addition, we have relied upon certificates and
advice from the officers of the Company upon which we believe we are
justified in relying and on various certificates from, and documents recorded
with, the State Department of Assessments and Taxation of Maryland (the
"SDAT"), including the charter of the Corporation (the "Charter") consisting of
Articles of Amendment and Restatement filed with the SDAT on July 9, 1993,
Articles of Amendment filed with the SDAT on May 31, 1995, and Articles of
Amendment filed with the SDAT on June 13, 1996. We have also examined the
Amended and Restated Bylaws of the Company adopted as of June 9, 1993 (the
"Bylaws") and Resolutions of the
<PAGE> 2
BALLARD SPAHR ANDREWS & INGERSOLL
The Price Reit, Inc.
August 5, 1997
Page 2
Board of Directors of the Company adopted on or before November 21, 1996,
January 8, 1997, January 17, 1997 and June 16, 1997 each in full force and
effect as of the date hereof; and such laws, records, documents, certificates,
opinions and instruments as we deem necessary to render this opinion.
We have assumed the genuineness of all signatures and the authenticity of
all documents submitted to us as originals and the conformity to the originals
of all documents submitted to us as certified, photostatic or conformed copies.
In addition, we have assumed that each person executing any instrument, document
or certificate referred to herein on behalf of any party is duly authorized to
do so, and that the Shares will not be issued in violation of the restrictions
on transferability or ownership set forth in Article VIII of the Charter.
Based on the foregoing, and subject to the assumptions and qualifications
set forth herein, it is our opinion that, as of the date of this letter, the
Shares have been duly authorized by all necessary corporate action on the part
of the Company, and the Shares will, upon issuance and delivery in accordance
with the terms and conditions described in the Registration Statement against
payment of the purchase price therefor as determined by the Board of Directors
of the Company or a committee thereof, be validly issued, fully paid and
nonassessable.
We consent to your filing this opinion as an exhibit to the Registration
Statement, and further consent to the filing of this opinion as an exhibit to
the applications to securities commissioners for the various states of the
United States for registration of the Shares. We also consent to the
identification of our firm as Maryland counsel to the Company in the section of
the Prospectus (which is part of the Registration Statement) entitled "Legal
Matters."
The opinions expressed herein are limited to the laws of the State of
Maryland and we express no opinion concerning any laws other than the laws of
the State of Maryland. Furthermore, the opinions presented in this letter are
limited to the matters specifically set forth herein and no other opinion shall
be inferred beyond the matters expressly stated.
The opinions expressed in this letter are solely for your use and may not
be relied upon by any other person without our prior written consent.
Very truly yours,
<PAGE> 3
BALLARD SPAHR ANDREWS & INGERSOLL
The Price Reit, Inc.
August 5, 1997
Page 3
/s/ BALLARD SPAHR ANDREWS & INGERSOLL
-----------------------------------------------
<PAGE> 1
EXHIBIT 8.1
[LETTERHEAD OF GIBSON, DUNN & CRUTCHER LLP]
August 7, 1997
(213) 229-7000 C 72752-00036
The Price REIT, Inc.
145 South Fairfax Avenue
Fourth Floor
Los Angeles, California 90036
Re: The Price REIT, Inc.
Gentlemen:
We have acted as special counsel to The Price REIT, Inc., a Maryland
corporation (the "Company"), in connection with the issuance by the Company of
1,000,000 shares of Common Stock, $.01 par value, pursuant to a registration
statement on Form S-3 (Registration No. 333-16787) (the "Registration
Statement"), which was declared effective by the Securities and Exchange
Commission on December 23, 1996.
You have requested our opinion concerning certain of the federal income
tax consequences to the Company. This opinion is based on various assumptions,
and is conditioned upon certain representations made by the Company as to
factual matters. In addition, this opinion is based upon the factual
representations of the Company concerning its business and properties as set
forth in the Registration Statement. We have made such legal and factual
examinations and inquiries, including an examination of originals or copies
certified or otherwise identified to our satisfaction of such documents, of
corporate records and other instruments as we have deemed necessary or
appropriate for purposes of this opinion.
We are opining herein as to the effect on the subject transaction only
of the federal income tax laws of the United States and we express no opinion
with respect to the applicability thereto, or the effect thereon, of other
federal laws, the laws of any other jurisdiction or as to any matters of
municipal law or the laws of any other local agencies within any state.
<PAGE> 2
GIBSON, DUNN & CRUTCHER LLP
The Price REIT, Inc.
August 7, 1997
Page 2
Based on such facts, assumptions and representations, it is our opinion
that:
(1) Commencing with the Company's taxable year ending December 31,
1991, the Company was organized in conformity with the requirements for
qualification as a real estate investment trust, and its proposed method of
operation has enabled and will enable it to meet the requirements for
qualification and taxation as a real estate investment trust under the Internal
Revenue Code of 1986, as amended (the "Code").
(2) The information in the Registration Statement under the caption
"Federal Income Tax Considerations," to the extent that it constitutes matters
of law, summaries of legal matters or legal conclusions, has been reviewed by
us and is accurate in all material respects.
This opinion is based on various statutory provisions, regulations
promulgated thereunder and interpretations thereof by the Internal Revenue
Service and the courts having jurisdiction over such matters, all of which are
subject to change either prospectively or retroactively. Also, any variation or
difference in the facts from those set forth in the Company's representations
may affect the conclusions stated herein. Moreover, the Company's qualification
and taxation as a real estate investment trust depends upon the Company's
ability to meet, through annual operating results, distribution levels and
diversity of stock ownership, the various qualification tests imposed under the
Code, the results of which will not be reviewed by Gibson, Dunn & Crutcher LLP.
Accordingly, no assurance can be given that the actual results of the Company's
operation for any one taxable year will satisfy such requirements.
We hereby consent to the use of our name and our opinion under the
heading "Legal Matters" in the Prospectus that forms a part of the
Registration Statement.
Very truly yours,
/s/ Gibson, Dunn & Crutcher LLP
GIBSON, DUNN & CRUTCHER LLP
