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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) February 18, 1998
THE MACERICH COMPANY
(Exact name of registrant as specified in charter)
Maryland 1-12504 95-4448705
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(State or Other Jurisdiction (Commission File (IRS Employer
of Incorporation) Number) Identification No.)
233 Wilshire Boulevard, Suite 700, Santa Monica, CA 90401
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(Address of principal executive of offices) (Zip code)
Registrant's telephone number including area code: (310) 394-6911
Not applicable.
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(Former name or former address, if changed since last report)
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Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
(c) Exhibits
1.1 Underwriting Agreement, dated February 18, 1998
between A.G. Edwards & Sons, Inc. and the
Registrant regarding the sale of 1,826,484 shares
of the Registrant's common stock (the "Shares").
5.1 Opinion of O'Melveny & Myers LLP as to the
validity of the Shares.
23.1 Consent of O'Melveny & Myers LLP (included in
Exhibit 5.1).
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Pursuant to the requirements of the Securities and Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Santa Monica, State of
California.
THE MACERICH COMPANY
By: /s/ RICHARD A. BAYER
--------------------------------
Richard A. Bayer
General Counsel & Secretary
DATED: February 20, 1998
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EXHIBIT 1.1
1,826,484 SHARES
THE MACERICH COMPANY
COMMON STOCK
UNDERWRITING AGREEMENT
February 18, 1998
A.G. Edwards & Sons, Inc.
One North Jefferson Avenue
St. Louis, Missouri 63103
The undersigned, The Macerich Company, a Maryland corporation (the
"COMPANY") hereby confirms its agreement with you (the "UNDERWRITER") as
follows:
1. DESCRIPTION OF SHARES. The Company proposes to issue and sell to
you 1,826,484 shares of its Common Stock, par value $.01 per share (the
"SHARES"). The Shares are more fully described in the Prospectus hereinafter
defined.
2. PURCHASE, SALE AND DELIVERY OF SHARES. On the basis of the
representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company agrees to sell to you,
and you agree to purchase from the Company at a purchase price of $26.0100
per share, 1,826,484 Shares.
Delivery to the Underwriter of and payment for the Shares will be made
at the office of A.G. Edwards & Sons, Inc., 77 Water Street, New York, New
York ("EDWARDS' OFFICE"), or such other place as you and the Company may
mutually agree upon (the "PLACE OF CLOSING"), for your account against
payment to the Company of the purchase price for the Shares sold to you by
wire transfer of immediately available funds, at 10:00 a.m., St. Louis time,
on February 23, 1998, or at such other time and date not later than three
full business days thereafter as you and the Company may agree, such time and
date of payment and delivery being herein called the "Closing Date." The
Company will not be obligated to deliver any of the Shares except upon
payment for all of the Shares to be purchased on the Closing Date.
The parties acknowledge and agree that the Shares will be delivered and
maintained in book-entry form and will be in such names and denominations as
you may request prior to 1:00 p.m., New York City time, on the second
business day prior to the Closing Date.
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3. Representations, Warranties and Agreements of the Company. (a) The
Company represents and warrants to and agrees with you that:
(i) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "ACT"); a registration statement
(Registration No. 333-21157) on Form S-3, including a prospectus relating to
the registration of the Shares and such other securities which may be offered
from time to time in accordance with Rule 415 under the Act, and such
amendments to such registration statement as may have been required to the
date of this Agreement, have been prepared by the Company pursuant to and in
conformity with the requirements of the Act, and the Rules and Regulations
(the "RULES AND REGULATIONS") of the Securities and Exchange Commission (the
"COMMISSION") thereunder, and have been filed with the Commission under the
Act and the Registration Statement was declared effective. Copies of such
registration statement, including any amendments thereto, each related
preliminary prospectus contained therein, the exhibits, financial statements
and schedules have heretofore been delivered by the Company to you. A
prospectus supplement (the "PROSPECTUS SUPPLEMENT") setting forth the terms
of the offering, sale and plan of distribution of the Shares and additional
information concerning the Company and its business has been or will be so
prepared and will be filed pursuant to Rule 424(b) of the Rules and
Regulations on or before the second business day after the date hereof (or
such earlier time as may be required by the Rules and Regulations). The term
"Registration Statement" as used herein means the registration statement, and
the basic prospectus included therein, as amended at the time it or any
amendment thereto became effective under the Act, or at the time any Annual
Report on Form 10-K is filed by the Company with the Commission (the
"EFFECTIVE DATE"), including financial statements and all exhibits and all
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act. Any document filed by the Company under the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT") after the effective
date of the Registration Statement or the date of the Prospectus Supplement
and incorporated by reference in the Prospectus shall be deemed to be
included in the Registration Statement and the Prospectus as of the date of
such filing. The term "Prospectus" as used herein means (i) the basic
prospectus included in the Registration Statement at the Effective Date, as
supplemented by the Prospectus Supplement as first filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations, except that, if such
basic prospectus is amended or supplemented subsequent to the Effective Date,
the term "Prospectus" shall refer to the basic prospectus as so amended or
supplemented and as further supplemented by the Prospectus Supplement, or
(ii) if no such filing is required, the form of final prospectus included in
the Registration Statement at the Effective Date.
(ii) The Commission has not issued, and is not to the knowledge of the
Company threatening to issue, an order preventing or suspending the use of
the Prospectus nor instituted proceedings for that purpose. The Registration
Statement at the Effective Date, and the Prospectus at its date of issue and
any amendments or supplements thereto prior to the Closing Date conform or
will conform in all material respects, as the case may be, to the
requirements of, the Act and the Rules and
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Regulations. Neither the Registration Statement nor any amendment thereto,
as of the applicable effective date, and neither the Prospectus nor any
supplement thereto prior to the Closing Date, as of its applicable filing
date, contains or will contain, as the case may be, any untrue statement of a
material fact or omits or will omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; PROVIDED,
HOWEVER, that the Company makes no representation or warranty as to
information contained in or omitted from the Registration Statement or the
Prospectus, or any such amendment or supplement, in reliance upon, and
conforming with, written information furnished to the Company by you
specifically for use in the preparation thereof.
(iii) The documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3 under the Act, when they became effective or
at the time they were filed with the Commission, as the case may be, complied
in all material respects with the requirements of the Exchange Act, and the
rules and regulations adopted by the Commission thereunder (the "EXCHANGE ACT
RULES AND REGULATIONS"), and, when filed with the Commission, did not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading.
(iv) The filing of the Registration Statement and the execution and
delivery of this Agreement have been duly authorized by the Board of
Directors of the Company; this Agreement constitutes a valid and legally
binding obligation of the Company enforceable in accordance with its terms
(except to the extent the enforceability of the indemnification and
contribution provisions of Section 6 hereof may be limited by public policy
considerations as expressed in the Act as construed by courts of competent
jurisdiction, and except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws affecting creditors'
rights generally and by general principles of equity); the issue and sale of
the Shares by the Company and the performance of this Agreement and the
consummation of the transactions herein contemplated will not result in a
violation of the Company's articles of incorporation or bylaws or result in a
breach or violation of any of the terms and provisions of, or constitute a
default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any properties or assets of the Company or its subsidiaries
under, any statute, or under any indenture, mortgage, deed of trust, note,
loan agreement, sale and leaseback arrangement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which they are bound or to which any of the properties or assets of the
Company or its subsidiaries is subject, or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the Company
or its subsidiaries or their properties, except to such extent as does not
materially adversely affect the business of the Company and its subsidiaries
taken as a whole; no consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is required
for the consummation of the transactions herein contemplated, except such as
may be required by the National Association of Securities
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Dealers, Inc. (the "NASD") or under the Act or Rules and Regulations or any
state securities laws.
(v) 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. Except as contemplated in the Prospectus,
subsequent to the respective dates as of which information is given in the
Registration Statement and the Prospectus, the Company and its subsidiaries
taken as a whole have not incurred any material liabilities or material
obligations, direct or contingent, other than in the ordinary course of
business, or entered into any material transactions not in the ordinary
course of business, and there has not been any material change in the capital
stock or long-term debt of the Company and its subsidiaries taken as a whole
or any material adverse change in the condition (financial or other), net
worth, business or results of operations of the Company and its subsidiaries
taken as a whole. The Company and its subsidiaries have filed all necessary
federal, state and foreign income and franchise tax returns and paid all
taxes shown as due thereon; all tax liabilities are adequately provided for
on the books of the Company and its subsidiaries except to such extent as
would not materially adversely affect the business of the Company and its
subsidiaries taken as a whole, the Company and its subsidiaries have made all
necessary payroll tax payments and are current and up-to-date as of the date
of this Agreement; and the Company and its subsidiaries have no knowledge of
any tax proceeding or action pending or threatened against the Company or its
subsidiaries which might materially adversely affect their business or
property taken as a whole.
(vi) Except as described in the Prospectus, there is not now pending
or, to the knowledge of the Company, threatened or contemplated, any action,
suit or proceeding to which the Company or its subsidiaries is a party before
or by any court or public, regulatory or governmental agency or body which
might be expected to result (individually or in the aggregate) in any
material adverse change in the condition (financial or other), business or
results of operations of the Company and its subsidiaries taken as a whole,
or might be expected to materially and adversely affect the properties or
assets thereof, and there are no contracts or documents of the Company or its
subsidiaries which would be required to be filed as exhibits to the
Registration Statement by the Act or by the Rules and Regulations which have
not been filed as exhibits to the Registration Statement or incorporated by
reference therein.
(vii) The Company has duly and validly authorized capital stock as
described in the Prospectus; all outstanding shares of Common Stock of the
Company and the Shares conform, or when issued will conform, to the
description thereof in the Prospectus and have been, or, when issued and paid
for will be, duly authorized, validly issued, fully paid and nonassessable;
and the issuance of the Shares to be purchased from the Company hereunder is
not subject to preemptive rights.
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(viii) Each of the Company and its subsidiaries have been duly
incorporated or formed, as the case may be, and is a validly existing
corporation, general or limited partnership, or other legal entity, as the
case may be, in good standing under the laws of the state or other
jurisdiction in which it is incorporated or formed, as the case may be. The
Company and its subsidiaries have full power and authority (corporate or
other) to own, lease and operate their properties and conduct their
businesses as described in the Prospectus; each of the Company and its
subsidiaries is duly qualified or registered to do business and is in good
standing in each state or other jurisdiction in which its ownership or
leasing of property or conduct of business legally requires such
qualification, except where the failure to be so qualified would not have a
material adverse effect on the ability of the Company and its subsidiaries to
conduct its or their business as described in the Prospectus; and the
outstanding shares of capital stock or ownership interests of the Company's
subsidiaries have been duly authorized and validly issued, are fully paid and
nonassessable and are owned by the Company free and clear of any mortgage,
pledge, lien, encumbrance, charge or adverse claim and are not the subject of
any agreement or understanding with any person, except for such as would not
have a material adverse effect on the Company and its subsidiaries taken as a
whole; no options, warrants or other rights to purchase, agreement or other
obligations to issue or other rights to convert any obligations into shares
of capital stock or ownership interest in the subsidiaries are outstanding.
(ix) Coopers & Lybrand L.L.P., KPMG Peat Marwick LLP and Ernst & Young
LLP, the accounting firms which have certified the financial statements filed
with or incorporated by reference in and as a part of the Registration
Statement, are independent public accounting firms within the meaning of the
Act and the Rules and Regulations.
(x) The consolidated financial statements of the Company together with
the related schedules and notes thereto, set forth or included or
incorporated by reference in the Registration Statement and Prospectus fairly
present the financial condition of the Company and its consolidated
subsidiaries as of the dates indicated and the results of operations, changes
in financial position, shareholders' equity and cash flows for the periods
therein specified, in conformity with generally accepted accounting
principles consistently applied throughout the periods involved (except as
otherwise stated therein). The summary and selected financial and
statistical data included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the information shown therein
and, to the extent based upon or derived from the financial statements, have
been compiled on a basis consistent with the financial statements presented
therein. In addition, the pro forma financial statements of the Company, and
the related notes thereto, included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the information
shown therein, have been prepared in accordance with the Commission's rules
and guidelines with respect to pro forma financial statements and have been
properly compiled on the basis described therein, and the assumptions used in
the preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances referred to
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therein. Furthermore, all financial statements required by Rule 3-14 of
Regulation S-X ("RULE 3-14") have been included or incorporated by reference
in the Registration Statement and the Prospectus and any such financial
statements are in conformity with the requirements of Rule 3-14. No other
financial statements are required to be set forth or to be incorporated by
reference in the Registration Statement or the Prospectus under the Act or
the Rules and Regulations thereunder.
(xi) Neither the Company nor any subsidiary is in default with respect
to any contract or agreement to which it is a party; PROVIDED that this
representation shall not apply to defaults which in the aggregate are not
materially adverse to the condition, financial or other, or the business or
prospects of the Company and its subsidiaries taken as a whole.
(xii) Neither the Company nor any subsidiary is in violation of any
other laws, ordinances or governmental rules or regulations to which it is
subject, including, without limitation, Section 13 of the Exchange Act, and
neither the Company nor any subsidiary has failed to obtain any license,
permit, franchise, easement, consent, or other governmental authorization
necessary to the ownership, leasing and operation of its properties or to the
conduct of its business, which violation or failure would materially
adversely affect the business, operations, affairs, properties, prospects,
profits or condition (financial or other) of the Company and its subsidiaries
taken as a whole. Neither the Company nor any subsidiary has, at any time
during the past five years, (A) made any unlawful contributions to any
candidate for any political office, or failed fully to disclose any
contribution in violation of law, or (B) made any payment to any state,
federal or foreign government official, or other person charged with similar
public or quasi-public duty (other than payment required or permitted by
applicable law).
(xiii) There are no holders of securities of the Company having rights
to registration thereof or preemptive rights to purchase Common Stock of the
Company except as disclosed in the Prospectus. Holders of registration
rights have waived such rights with respect to the offering being made by the
Prospectus.
(xiv) The Company and each of its subsidiaries has good and marketable
title to all properties and assets described in the Prospectus as owned by
it, free and clear of all liens, charges, encumbrances or restrictions,
except such as (i) are described or incorporated by reference in the
Prospectus or (ii) are not material to the business of the Company or its
subsidiaries taken as a whole. The Company and each of its subsidiaries has
valid, subsisting and enforceable leases for the properties described in the
Prospectus as leased by it, with such exceptions as are not material and do
not materially interfere with the use made and proposed to be made of such
properties by the Company and such subsidiaries; no tenant under any of the
leases pursuant to which the Company leases its properties has an option or
right of first refusal to purchase the premises demised under such lease
which option or right, if exercised, would have a material adverse effect on
the Company and its subsidiaries taken as a whole; the use and occupancy of
each of the properties of the Company complies in all material respects with
all applicable codes and
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zoning laws and regulations; the Company has no knowledge of any pending or
threatened condemnation or zoning change or other proceeding or action that
will in any material respect affect the size of, use of, improvements of,
construction on, or access to any of the properties of the Company, except
for such as would not have a material adverse effect on the Company and its
subsidiaries taken as a whole.
(xv) Title insurance in favor of the Company (or the subsidiary which
holds title to such property) is maintained with respect to each of the
properties owned by the Company in an amount at least equal to the greater of
(i) the cost of acquisition of such property of (ii) the cost of construction
by the Company of the improvements located on such property (measured at the
time of such construction), except, in each case, where the failure to
maintain such title insurance would not materially adversely affect business,
results of operations, properties, net worth or condition (financial or
other) of the Company and its subsidiaries taken as a whole. Title insurance
in favor of the mortgagee is maintained in an amount equal to the maximum
commitment of the related loan.
(xvi) (a) Except as disclosed in the Prospectus, the Company has no
knowledge of (a) the presence of any hazardous substances, hazardous
materials, toxic substances, pollutants or waste materials (collectively,
"HAZARDOUS MATERIALS") on any of its properties, except that which is in
compliance with all Environmental Laws or (b) any spills, releases,
discharges or disposals of Hazardous Materials that have occurred or are
presently occurring on or from its properties, which presence or occurrence
would in the aggregate materially adversely affect the business, results of
operations, properties, net worth or condition (financial or other) of the
Company and its subsidiaries taken as a whole.
(b) Except as disclosed in the Prospectus (including the financial
statements incorporated by reference therein), the Company, its subsidiaries
and its properties (i) are in compliance with any and all Environmental Laws,
(ii) have received all permits, licenses or other approvals required under
applicable Environmental Laws to conduct its business and (iii) are in
compliance with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure to comply
with the terms and conditions of such permits, licenses or approvals would
not in the aggregate materially adversely affect the business, results of
operations, properties, net worth or condition (financial or other) of the
Company and its subsidiaries taken as a whole.
(c) The Company engages environmental consultants to perform phase I
environmental site assessments in accordance with the ASTM Standard to
identify any environmental conditions prior to the purchase of its
properties. On the basis of such phase I environmental site assessments, or
such additional investigations as may have been performed based on the
findings of a phase I assessment, and, except as described in the Prospectus
(including the financial statements incorporated by reference therein), the
Company and its subsidiaries have reasonably concluded that no such
environmental conditions exist which would, individually or in the aggregate,
materially adversely affect
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the business, results of operations, properties, net worth or condition
(financial or other) of the Company and its subsidiaries taken as a whole.
(d) As used herein, "Hazardous Material" shall include, without
limitation any flammable explosives, radioactive materials, hazardous
materials, hazardous wastes, hazardous or toxic substances, or related
materials, asbestos, polychlorinated biphenyls ("PCBS"), petroleum products
and by-products and substances defined or listed as "hazardous substances,"
"toxic substances," "hazardous waste," or "hazardous materials" in any
Federal, state or local Environmental Law.
(e) As used herein, "Environmental Law" shall mean all laws,
regulations or ordinances of any Federal, state or local governmental
authority having or claiming jurisdiction over any of its properties (a
"GOVERNMENTAL AUTHORITY") that are designed to protect public health and the
environment or regulate the handling of Hazardous Materials, including,
without limitation, the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended (42 U.S.C. Section 9601 ET SEQ.)
("CERCLA"), the Hazardous Material Transportation Act, as amended (49 U.S.C.
Section 1801 ET SEQ.), the Resource Conservation and Recovery Act, as amended
(42 U.S.C. Section 6901 ET SEQ.), the Federal Water Pollution Control Act, as
amended (33 U.S.C. Section 1251 ET SEQ.), and the Clean Air Act, as amended
(42 U.S.C. Section 7401 ET SEQ.).
(xvii) No labor disturbance exists with the employees of the Company
or its subsidiaries or is imminent which materially adversely affect the
business, results of operations, properties, net worth or condition
(financial or other) of the Company and its subsidiaries taken as a whole.
(xviii) The Company has not taken and will not take, directly or
indirectly, any action designed to or which might reasonably be expected to
cause or result in stabilization or manipulation of the price of the Common
Stock to facilitate the sale or resale of the Shares.
(xix) The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
(xx) The mortgages and deeds of trust encumbering the properties and
assets described in the Prospectus are not convertible nor does the Company
hold a participating interest therein.
(xxi) Property and casualty insurance in favor of the Company is
maintained with respect to each of the properties owned by it in an amount
and on such terms as is reasonable and customary for businesses of this type.
(xxii) The Company has continuously been organized and operated in
conformity with the requirements for qualification as a real estate
investment trust under the Internal Revenue Code of 1986, as amended (the
"CODE") for all taxable years commencing with
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its taxable year ended December 31, 1994. The Company has filed an election
to be taxed as a real estate investment trust for all subsequent taxable
years, and no such election has been terminated. The Company's method of
operation will permit it to continue to meet the requirements for taxation as
a real estate investment trust under the Code.
(xxiii) Except as disclosed in the Prospectus, each entity identified
in the Prospectus as a tenant of any property, or a subtenant thereof, has
entered into a lease or a sublease, if applicable, for the possession of such
property; except as disclosed in the Prospectus, each such lease is in full
force and effect and neither the Company nor any of its subsidiaries has
notice of any defense to the obligations of the tenant thereunder or any
claim asserted or threatened by any person or entity, which claim, if
sustained, would materially adversely affect the business, results of
operations, properties, net worth or condition (financial or other) of the
Company and its subsidiaries taken as a whole; and except as disclosed in the
Prospectus, the lessor under each lease has complied with its obligations
under such lease in all material respects and neither the Company nor any of
its subsidiaries has notice of any default by the tenant under such lease
which, individually or in the aggregate with other such defaults, materially
adversely affect the business, results of operations, properties, net worth
or condition (financial or other) of the Company and its subsidiaries taken
as a whole.
(xxiv) Any certificate signed by any officer of the Company and
delivered to you or to your counsel on the Closing Date shall be deemed a
representation and warranty by the Company to you as to the matters covered
thereby.
(xxv) A registration statement relating to the Common Stock of the
Company has been declared effective by the Commission pursuant to the
Exchange Act and the Common Stock of the Company is duly registered
thereunder.
4. ADDITIONAL COVENANTS. The Company covenants and agrees with you that:
(a) The Company will (i) prepare a Prospectus Supplement setting
forth the number of Shares covered thereby and their terms not
otherwise specified in the Prospectus pursuant to which the Shares are
being issued, the name of the Underwriter and the number of Shares which
the Underwriter has agreed to purchase, the price at which the Shares
are to be purchased by the Underwriter from the Company and such other
information as the Underwriter and the Company deem appropriate in
connection with the offering of the Shares, and file the Prospectus in a
form approved by you pursuant to Rule 424(b) under the Act no later than
the Commission's close of business on the second business day following
the date of the determination of the offering price of the Shares; (ii)
prior to the Closing Date, not file any amendment to the Registration
Statement or supplement to the Prospectus of which you shall not
previously have been advised and furnished with a copy or to which you
shall have reasonably objected in writing or which is not in compliance
with the Rules and Regulations; and (iii) prior to the Closing Date,
promptly notify you after it shall have received notice thereof of the
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time when any amendment to the Registration Statement becomes effective or
when any supplement to the Prospectus has been filed.
(b) The Company will advise you promptly, after it shall receive
notice or obtain knowledge thereof, of any request of the Commission for
amendment of the Registration Statement or for supplement to the
Prospectus or for any additional information, or of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the use of the Prospectus or of the
institution or threatening of any proceedings for that purpose, and the
Company will use its best efforts to prevent the issuance of any such
stop order preventing or suspending the use of the Prospectus and to
obtain as soon as possible the lifting thereof, if issued.
(c) The Company will cooperate with you and your counsel in
endeavoring to qualify the Shares for sale under the securities laws of
such jurisdictions as they may have designated and will make such
applications, file such documents, and furnish such information as may
be necessary for that purpose, PROVIDED the Company shall not be
required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction where it is not now so
qualified or required to file such a consent or to subject itself to
taxation as doing business in any jurisdiction where it is not now so
taxed. The Company will, from time to time, file such statements,
reports, and other documents, as are or may be required to continue such
qualifications in effect for so long a period as you may reasonably
request.
(d) The Company will deliver to you, without charge, as many
copies of the Prospectus (including all documents incorporated by
reference therein), or as it thereafter may be amended or supplemented,
as you may from time to time reasonably request. The Company consents
to the use of such Prospectus by you, both in connection with the
offering or sale of the Shares and for such other purposes and for such
period of time thereafter as the Prospectus is required by law to be
delivered in connection with the offering or sale of the Shares. The
Company will deliver to you at or before the Closing Date two conformed
copies of the Registration Statement and all amendments thereto
including all exhibits filed therewith or incorporated by reference
therein and all documents incorporated by reference in the Prospectus
and will deliver to you such number of copies of the Registration
Statement, without exhibits, and of all amendments thereto, as you may
reasonably request.
(e) If, during the period in which a prospectus is required by
law to be delivered by an underwriter or dealer, any event shall occur
as a result of which, in the judgment of the Company or in reasonable
opinion of your counsel, it becomes necessary to amend or supplement the
Prospectus in order to make the statements therein, in light of the
circumstances existing at the time the Prospectus is delivered to a
purchaser, not misleading, or, if it is necessary at any time to amend
or supplement the Prospectus to comply with any law, the Company
promptly will prepare and file with the Commission an appropriate
amendment to the Registration Statement or supplement to the Prospectus
so that the Prospectus as so amended or supplemented will not, in the
light of the
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circumstances when it is so delivered, be misleading, or so that the
Prospectus will comply with law.
(f) The Company will make generally available to its
shareholders, as soon as it is practicable to do so, but in any event
not later than 15 months after the effective date of the Registration
Statement, an earnings statement covering a period of at least 12
consecutive months beginning after the effective date of the
Registration Statement, which earnings statement shall satisfy the
requirements of Section 11(a) of the Act and Rule 158 of the Rules and
Regulations.
(g) The Company will, for a period of three years from the
Closing Date, deliver to you at your principal executive offices a copy
of each report mailed by the Company to its stockholders or filed with
the Commission pursuant to the Act or the Exchange Act. Any report
required to be furnished under this paragraph (g) shall be furnished as
soon as practicable after such report becomes available.
(h) The Company will apply the proceeds from the sale of the
Shares substantially in accordance with the description under "Use of
Proceeds" in the Prospectus, which description complies in all respects
with the requirements of Item 504 of Regulation S-K.
(i) The Company will supply you with copies of all correspondence
to and from, and all documents issued to and by, the Commission in
connection with the registration of the Shares under the Act.
(j) Prior to the Closing Date, the Company will not issue any
press releases or other communications directly or indirectly and will
hold no press conference, with respect to the Company or any of its
subsidiaries, the financial condition, results of operations, business,
properties, assets or liabilities of the Company or any of its
subsidiaries, or the offering of the Shares, without your prior written
consent, which may not be unreasonably withheld or delayed.
(k) The Company will use its best efforts to obtain approval for,
and maintain the listing of the Shares on, the New York Stock Exchange.
(l) The Company and its subsidiaries will maintain and keep
accurate books and records reflecting their assets and maintain internal
accounting controls which provide reasonable assurance that (1)
transactions are executed in accordance with management's authorization,
(2) transactions are recorded as necessary to permit the preparation of
the Company's consolidated financial statements and to maintain
accountability for the assets of the Company and its subsidiaries, (3)
access to the assets of the Company and its subsidiaries is permitted
only in accordance with management's authorization, and (4) the recorded
accounts of the assets of the Company and its subsidiaries are compared
with existing assets at reasonable intervals.
14
<PAGE>
(m) During any period in which a prospectus is required by law to
be delivered by the Underwriter or dealer, the Company will promptly
file all documents required to be filed with the Commission pursuant to
Sections 13, 14 or 15(d) of the Exchange Act.
(n) The Company use its best efforts to meet the requirements to
qualify as a "real estate investment trust" under the Code, unless the
Company's Board of Directors determines by resolution that it is in the
best interests of the Company's stockholders not to so qualify.
5. CONDITIONS OF UNDERWRITER'S OBLIGATION. Your obligations, as
Underwriter to purchase and pay for the Shares, as provided herein, shall be
subject to the accuracy in all material respects, as of the date hereof and as
of the Closing Date, of the representations and warranties of the Company
contained herein, to the performance in all material respects by the Company of
its covenants and obligations hereunder, and to the following additional
conditions:
(a) All filings required by Rule 424 of the Rules and Regulations
shall have been made. No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been
issued and no proceeding for that purpose shall have been initiated or,
to your knowledge or the knowledge of the Company, threatened or
contemplated by the Commission, and any request of the Commission for
additional information (to be included in the Registration Statement or
the Prospectus or otherwise) shall have been complied with to your
reasonable satisfaction.
(b) You shall not have disclosed in writing to the Company on or
prior to the Closing Date, that the Registration Statement or Prospectus
or any amendment or supplement thereto contains an untrue statement of
fact which, in the opinion of your counsel, is material, or omits to
state a fact which, in the opinion of such counsel, is material and is
required to be stated therein or is necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(c) On the Closing Date, you shall have received the opinions of
O'Melveny & Myers LLP, counsel for the Company, and Ballard Spahr
Andrews & Ingersoll, special counsel for the Company, addressed to you
and dated the Closing Date, as to the matters set forth in Schedule I
attached hereto. In rendering such opinion as aforesaid, O'Melveny &
Myers LLP may rely on an opinion or opinions, each dated the Closing
Date, of other counsel retained by them or the Company as to the laws of
any jurisdiction, provided that each such local counsel is acceptable to
you.
(d) You shall have received on the Closing Date, from Chapman and
Cutler, your counsel, such opinion or opinions, dated the Closing Date
with respect to the incorporation of the Company, the validity of the
Shares, the Registration Statement, the Prospectus and other related
matters as you may reasonably require; the Company shall have furnished
to such counsel such documents as they reasonably request for the
purpose of enabling them to pass on such matters.
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(e) You shall have received at or prior to the Closing Date from
Chapman and Cutler a memorandum or memoranda, in form and substance
satisfactory to you, with respect to the qualification for offering and
sale by you of the Shares under state securities or Blue Sky laws of
such jurisdictions as you may have designated to the Company.
(f) On the date of this Agreement and on the Closing Date, you
shall have received from Coopers & Lybrand L.L.P. a letter or letters,
dated the date of this Agreement and the Closing Date, respectively, in
form and substance satisfactory to you, confirming that they are
independent public accountants with respect to the Company within the
meaning of the Act and the published Rules and Regulations, and stating
to the effect set forth in Schedule II hereto.
(g) Except as contemplated in the Prospectus, (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 any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree; and (ii) subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus,
neither the Company nor any of its subsidiaries shall have incurred any
material liability or obligation, direct or contingent, or entered into
material transactions, and there shall not have been any material change
in the capital stock or long-term debt of the Company and its
subsidiaries or any material change in the condition (financial or
other), net worth, business, management or results of operations of the
Company or its subsidiaries, the effect of which, in any such case
described in clause (i) or (ii), is in your judgment so material or
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares being delivered on the
Closing Date on the terms and in the manner contemplated in the
Prospectus.
(h) There shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on
the New York Stock Exchange or the American Stock Exchange or the
establishing on such exchanges by the Commission or by such exchanges of
minimum or maximum prices which are not in force and effect on the date
hereof; (ii) a general moratorium on commercial banking activities
declared by either federal or state authorities; (iii) with the
exception of the outbreak or escalation of hostilities between the
United States and Iraq (or their respective allies), the outbreak or
escalation of hostilities involving the United States or the declaration
by the United States of a national emergency or war, if the effect of
any such event specified in this clause (iii) in your judgment makes it
impracticable or inadvisable to proceed with the delivery of the Shares
in the manner contemplated in the Prospectus; or (iv) with the exception
of the outbreak or escalation of hostilities between the United States
and Iraq (or their respective allies), any calamity or crisis, change in
national, international or world affairs, act of God, change in the
international or domestic markets, or change in the existing financial,
political or economic conditions
16
<PAGE>
in the United States or elsewhere, if the effect of any such event
specified in this clause (iv) makes it impracticable or inadvisable
to proceed with the public offering or the delivery of the Shares
in the manner contemplated in the Prospectus.
(i) You shall have received certificates, dated the Closing Date
and signed by the President and the Chief Financial Officer of the
Company stating that (i) they have carefully examined the Registration
Statement and the Prospectus as amended or supplemented and all
documents incorporated by reference therein and nothing has come to
their attention that would lead them to believe that either the
Registration Statement or the Prospectus, or any amendment or supplement
thereto or any documents incorporated by reference therein as of their
respective effective, issue or filing dates, contained, and the
Prospectus as amended or supplemented and all documents incorporated by
reference therein and when read together with the documents incorporated
by reference therein, at the Closing Date, contains any untrue statement
of a material fact, or omits to state a material fact required to be
stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading,
and, that (ii) all representations and warranties made herein by the
Company are true and correct in all material respects at the Closing
Date, with the same effect as if made on and as of the Closing Date, and
all agreements herein to be performed by the Company on or prior to the
Closing Date have been duly performed in all material respects.
(j) The Company shall not have failed, refused, or been unable,
at or prior to the Closing Date to have performed in all material
respects any agreement on their part to be performed or any of the
conditions herein contained and required to be performed or satisfied by
them at or prior to the Closing Date.
(k) The Company shall have furnished to you at the Closing Date
such other certificates as you may have reasonably requested as to the
accuracy, on and as of the Closing Date, of the representations and
warranties of the Company herein and as to the performance by the
Company of their obligations hereunder.
(l) The Shares shall have been approved for trading upon official
notice of issuance on the New York Stock Exchange.
All such opinions, certificates, letters and documents will be in
compliance with the provisions hereof only if they are reasonably
satisfactory to you and to Chapman and Cutler, your counsel. The Company
will furnish you with such conformed copies of such opinions, certificates,
letters and documents as you may request.
If any of the conditions specified above in this Section 5 shall not
have been satisfied at or prior to the Closing Date or waived by you in
writing, this Agreement may be terminated by you on notice to the Company.
17
<PAGE>
6. INDEMNIFICATION. (a) The Company will indemnify and hold you
harmless and each person, if any, who controls you within the meaning of
Section 15 of the Act, against any losses, claims, damages or liabilities,
joint or several, to which you or such controlling person may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement,
the Prospectus, or any amendment or supplement thereto, or in any blue sky
application or other document executed by the Company or based on any
information furnished in writing by the Company, filed in any jurisdiction in
order to qualify any or all of the Shares under the securities laws thereof
("BLUE SKY APPLICATION"), or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and will reimburse
you and each such controlling person for any legal or other expenses
reasonably incurred by you or such controlling person in connection with
investigating or defending any such loss, claim, damage or liability;
PROVIDED, HOWEVER, that the Company shall not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement or the Prospectus, or
such amendment or supplement, or any Blue Sky Application in reliance upon
and in conformity with written information furnished to the Company by you,
specifically for use in the preparation thereof; and PROVIDED, FURTHER, that
if the Prospectus contained any alleged untrue statement or allegedly omitted
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading and such statement or omission
shall have been corrected in a revised Prospectus or in the Prospectus or in
an amended or supplemented Prospectus, the Company shall not be liable to you
or controlling persons under this subsection (a) with respect to such alleged
untrue statement or alleged omission to the extent that any such loss, claim,
damage or liability of such person results from the fact that you sold Shares
to a person to whom there was not sent or given, at or prior to the written
confirmation of such sale, such revised Prospectus or amended or supplemented
Prospectus. In addition to its other obligations under this Section 6(a),
the Company agrees that, as an interim measure during the pendency of any
claim, action, investigation, inquiry or other proceeding arising out of or
based upon any statement or omission, or any alleged statement or omission,
described in this Section 6(a), it will reimburse you on a monthly basis for
all reasonable legal and other expenses incurred in connection with
investigating or defending any such claim, action, investigation, inquiry or
other proceeding, notwithstanding the absence of a judicial determination as
to the propriety and enforceability of the Company's obligation to reimburse
you for such expenses and the possibility that such payments might later be
held to have been improper by a court of competent jurisdiction. This
indemnity agreement shall be in addition to any liabilities which the Company
may otherwise have.
(b) You will indemnify and hold harmless the Company, each of its
directors, each of its officers who have signed the Registration Statement
and each person, if any, who controls the Company within the meaning of
Section 15 of the Act, against any losses, claims, damages
18
<PAGE>
or liabilities, joint or several, to which the Company or any such director,
officer or controlling person may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration
Statement, the Prospectus, any amendment or supplement thereto, or any Blue
Sky Application or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in the Registration Statement or the
Prospectus, such amendment or supplement, or any Blue Sky Application in
reliance upon and in conformity with written information furnished to the
Company by you specifically for use in the preparation thereof; and will
reimburse any legal or other expenses reasonably incurred by the Company or
any such director, officer or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or action.
In addition to your other obligations under this Section 6(b), you agree
that, as an interim measure during the pendency of any claim, action,
investigation, inquiry or other proceeding arising out of or based upon any
statement or omission, or any alleged statement or omission, described in
this Section 6(b), you will reimburse the Company or such director, officer
or controlling person on a monthly basis for all reasonable legal and other
expenses incurred in connection with investigating or defending any such
claim, action, investigation, inquiry or other proceeding, notwithstanding
the absence of a judicial determination as to the propriety and
enforceability of your obligation to reimburse the Company or such director,
officer or controlling person for such expenses and the possibility that such
payments might later be held to have been improper by a court of competent
jurisdiction. This indemnity agreement shall be in addition to any
liabilities which you may otherwise have.
(c) Any party which proposes to assert the right to be indemnified
under this Section 6 shall, within ten days after receipt of notice of
commencement of any action, suit or proceeding against such party in respect
of which a claim is to be made against an indemnifying party under this
Section 6, notify each such indemnifying party of the commencement of such
action, suit or proceeding, enclosing a copy of all papers served, but the
omission so to notify such indemnifying party of any such action, suit or
proceeding shall not relieve such indemnifying party from any liability which
it may have to any indemnified party otherwise than under this Section 6. In
case any such action, suit or proceeding shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
in, and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party for any legal or other expenses, other than reasonable
costs of investigation, subsequently incurred by such indemnified party in
connection with the defense thereof. The indemnified party shall have the
right to employ its own counsel in any such action, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i)
the employment of counsel by such indemnified party at the expense of the
indemnifying party has been authorized by the indemnifying party, (ii) the
indemnified party shall have been advised by such counsel in a written
opinion that there may be a conflict of interest between the indemnifying
party and the indemnified party in the conduct of the
19
<PAGE>
defense, or certain aspects of the defense, of such action (in which case the
indemnifying party shall not have the right to direct the defense of such
action with respect to those matters or aspects of the defense on which a
conflict exists or may exist on behalf of the indemnified party) or (iii) the
indemnifying party shall not in fact have employed counsel to assume the
defense of such action, in any of which events such fees and expenses to the
extent applicable shall be borne by the indemnifying party. An indemnifying
party shall not be liable for any settlement of any action or claim effected
without its consent. Each indemnified party, as a condition of such
indemnity, shall cooperate in good faith with the indemnifying party in the
defense of any such action or claim.
(d) If the indemnification provided for in this Section 6 is for any
reason, other than pursuant to the terms thereof, judicially determined (by
the entry of a final judgment or decree by a court of competent jurisdiction
and the expiration of time to appeal or the denial of the last right to
appeal) to be unavailable to an indemnified party under subsections (a) or
(b) above in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
in such proportion as is appropriate to reflect the relative benefits
received by the Company and you from the offering of the Shares. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as
is appropriate to reflect not only such relative benefits but also the
relative fault, as applicable, of the Company and you in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as other relevant equitable considerations. The
relative benefits received by, as applicable, the Company and you shall be
deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by you, in each case as
set forth on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue statement
of a material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company or you and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Company and you agree that it
would not be just and equitable if contributions pursuant to this subsection
(d) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities
(or actions in respect thereof) referred to above in this subsection (d)
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d), you
shall not be required to contribute any amount in excess of the underwriting
discounts and commissions applicable to the Shares purchased by you. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
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7. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties, and agreements of the Company contained herein
or in certificates delivered pursuant hereto, and your agreements contained
in Section 6 hereof, shall remain operative and in full force and effect
regardless of any termination or cancellation of this Agreement or any
investigation made by or on behalf of you or any controlling person, the
Company or any of its officers, directors or any controlling persons, and
shall survive delivery of the Shares to you hereunder provided that, if you,
with actual knowledge of (a) a default in any of the covenants agreements or
obligations to be performed by the Company under this Agreement or under an
closing document, and/or (b) any breach of any representation or warranty of
the Company made in this Agreement or any closing document, nonetheless elect
to proceed to closing, then upon the consummation of the closing, you will be
deemed to have waived any such default and breach and will have no claim
against the Company with respect thereto, or any termination right hereunder
by reason thereof.
8. EFFECTIVE DATE AND TERMINATION. (a) This Agreement shall become
effective upon execution.
(b) This Agreement may be terminated by you at any time at or prior to
the Closing Date by notice to the Company if any condition specified in
Section 5 hereof shall not have been satisfied on or prior to the Closing
Date. Any such termination shall be without liability of any party to any
other party except as provided in Sections 6 and 9 hereof. If you terminate
this Agreement as provided in Section 8(b), you shall notify the Company by
telephone or telegram, confirmed by letter.
9. COST AND EXPENSES. The Company will bear and pay the costs and
expenses incident to the registration of the Shares and offering thereof as
described in the Prospectus including, without limitation, (a) the fees and
expenses of the Company's accountants and the fees and expenses of counsel
for the Company, (b) the preparation, printing, filing, delivery and shipping
of the Registration Statement, the Prospectus, and any amendments or
supplements thereto (c) the furnishing of copies of such documents to you,
(d) the registration or qualification of the Shares for offering and sale
under the securities laws of the various states, including the reasonable
fees and disbursements of your counsel relating to such registration or
qualification, (e) the fees payable to the NASD (if any) and the Commission
in connection with their review of the proposed offering of the Shares, (f)
all initial transfer taxes, if any, (g) all fees and expenses relating to the
authorization of the Shares for trading on the New York Stock Exchange and
(h) all of the other costs and expenses incident to the performance by the
Company of the registration and offering of the Shares; PROVIDED, HOWEVER,
that you will bear and pay the fees and expenses of your counsel (other than
fees and disbursements relating to the registration or qualification of the
Shares for offering and sale under the securities laws of the various
states), your out-of-pocket expenses, and any advertising costs and expenses
incurred by you incident to the offering of the Shares.
If this Agreement is terminated by you in accordance with the provisions
of Section 8(b), the Company shall reimburse you for all of your
out-of-pocket expenses, including the reasonable fees and disbursements of
your counsel.
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10. INFORMATION FURNISHED BY THE UNDERWRITER. The statements set
forth in the last two paragraphs on the cover page and the statements under
the caption "Underwriting" in the Prospectus constitute the only information
furnished by or on behalf of you as such information is referred to in
Sections 3(a)(ii) and 6 hereof.
11. NOTICES. All notices or communications hereunder, except as
herein otherwise specifically provided, shall be in writing and if sent to
you shall be mailed, delivered, sent by facsimile transmission, or
telegraphed and confirmed c/o A.G. Edwards & Sons, Inc. at One North
Jefferson Avenue, St. Louis, Missouri 63103, Attention: Syndicate, facsimile
number (314) 289-7387, or if sent to the Company shall be mailed, delivered,
sent by facsimile transmission, or telegraphed and confirmed to the Company
at 233 Wilshire Boulevard, No. 700, Santa Monica, California 90401,
Attention: General Counsel, facsimile number (310) 395-2791.
12. PARTIES. This Agreement shall inure to the benefit of and be
binding upon you and the Company and their respective successors and assigns.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, corporation or other entity, other than the
parties hereto and their respective successors and assigns and the
controlling persons, officers and directors referred to in Section 6, any
legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained; this Agreement and all
conditions and provisions hereof being intended to be and being for the sole
and exclusive benefit of the parties hereto and their respective successors
and assigns and said controlling persons and said officers and directors, and
for the benefit of no other person, corporation or other entity. No
purchaser of any of the Shares from you shall be construed a successor or
assign by reason merely of such purchase.
13. COUNTERPARTS. This Agreement may be executed by any one or more
of the parties hereto in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
14. PRONOUNS. Whenever a pronoun of any gender or number is used
herein, it shall, where appropriate, be deemed to include any other gender
and number.
15. APPLICABLE LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Missouri.
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If the foregoing is in accordance with your understanding, please
so indicate in the space provided below for that purpose, whereupon this
letter shall constitute a binding agreement between the Company and you.
THE MACERICH COMPANY
By: /s/ RICHARD A. BAYER
---------------------------
Title: General Counsel and
Secretary
Accepted in St. Louis,
Missouri as of the date
first above written.
A.G. Edwards & Sons, Inc.
By: /s/ DOUGLAS D. RUBENSTEIN
----------------------------
Title: Managing Director
23
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EXHIBIT 5.1
February
20th
1 9 9 8
528,715-096
The Macerich Company
233 Wilshire Boulevard
Suite 700
Santa Monica, CA 90401
Re: Sale of 1,826,484 Shares of Common Stock of The Macerich Company
(the "Company")
Ladies and Gentlemen:
We have acted as your special counsel in connection with the
issuance and sale of 1,826,484 shares (the "Shares") of Common Stock, $.01
par value per share, by the Company pursuant to an Underwriting Agreement
dated February 18, 1998 (the "Underwriting Agreement") between A. G. Edwards
& Sons, Inc. and the Company. The Shares are registered pursuant to the
Registration Statement on Form S-3, File No. 333-21157, as amended, (the
"Registration Statement"), filed by the Company with the Securities and
Exchange Commission in connection with the registration of up to $500,000,000
aggregate offering price of securities. We are familiar with the proceedings
heretofore taken by the Company in connection with the authorization,
registration, issuance and sale of the Shares.
On the basis of the foregoing and in reliance thereon and our
consideration of such other matters of fact and questions of law as we have
deemed relevant in the circumstances, we are of the opinion that, subject to
the assumptions and limitations set forth herein, upon payment for and
delivery of the Shares in accordance with the terms of the Underwriting
Agreement, such Shares will be validly issued, fully paid and nonassessable.
The law covered by this opinion is limited to the present Maryland
General Corporation Law. We express no opinion as to the laws of any other
jurisdiction and no opinion regarding statutes, administrative decisions,
rules or regulations of any county, municipality or special political
subdivision or other local authority.
We have, with your approval, assumed that the signatures on all
documents examined by us are genuine, that all
<PAGE>
items submitted as originals are authentic, and that all items submitted as
copies conform to the originals, assumptions which we have not independently
verified.
We consent to the filing of this opinion as an exhibit to the
Company's Current Report on Form 8-K, event date February 18, 1998, and the
use to the name of our firm therein.
Respectfully submitted,
/s/ O'MELVENY & MYERS LLP
