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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) May 27, 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.)
401 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 May 27, 1998 between
PaineWebber Incorporated and the Registrant
regarding the sale of 1,864,802 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
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Richard A. Bayer
General Counsel & Secretary
DATED: May 29, 1998
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EXHIBIT 1.1
1,864,802 SHARES
THE MACERICH COMPANY
COMMON STOCK
UNDERWRITING AGREEMENT
May 27, 1998
PaineWebber Incorporated
1285 Avenue of the Americas
19th Floor
New York, New York 10019
Dear Sirs:
The Macerich Company (the "Company"), proposes to issue and sell an aggregate of
1,864,802 shares (the "Shares") of its common stock, par value $.01 per share
(the "Common Stock"), to PaineWebber Incorporated (the "Underwriter"). The
Underwriter intends to deposit the Shares with the trustee of the PaineWebber
Equity Trust REIT Series I (A Unit Investment Trust) (the "Trust"), a registered
unit investment trust under the Investment Company Act of 1940, as amended, for
which PaineWebber Incorporated acts as sponsor and depositor, in exchange for
units in the Trust.
As used herein, the term "Properties" refers to the properties listed on
Schedule I hereto which represent, as of the date hereof, all the real property
in which the Company, either directly or through its Subsidiaries (as defined
herein) or through ownership of interests in any Joint Venture (as defined
herein), owns an interest.
The Company wishes to confirm as follows its agreement with the Underwriter in
connection with the purchase of the Shares by the Underwriter.
1. REGISTRATION STATEMENT AND PROSPECTUS. The Company has prepared and filed
with the Securities and Exchange Commission (the "Commission") in conformity in
all material respects with the provisions of the Securities Act of 1933, as
amended, and the rules and regulations (the "Rules and Regulations") of the
Commission thereunder (collectively, the "Act"), a registration statement on
Form S-3 (Registration No. 333-21157) under the Act (the "registration
statement"), including a prospectus relating to the Shares; and an amendment
thereto has been filed with the Commission, and such amendment has been
similarly prepared. Such registration statement and such amendment have become
effective under the Act. The Company also has filed, or proposes to file, with
the Commission pursuant to Rule 424(b) under the Act, a prospectus supplement
relating to the offering of the Shares pursuant to Rule 415 of the Act.
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The term "Registration Statement" as used in this Agreement means the
registration statement (including all financial schedules and exhibits), as
amended at the time it became effective, as supplemented or amended prior to the
execution of this Agreement. The term "Prospectus" as used in this Agreement
means the prospectus in the form first used to confirm sales of Shares (the
"Base Prospectus") together with the prospectus supplement relating to the
offering of the Shares under Rule 415 of the Act dated the date hereof in the
form first filed with the Commission on or after the date hereof (the
"Prospectus Supplement"). The term "Prepricing Prospectus Supplement" as used
in this Agreement means the Base Prospectus together with any prospectus
supplement subject to completion included in the registration statement as filed
with the Commission pursuant to Rule 424(b) under the Act; and as such
prospectus shall have been amended from time to time prior to the date of the
Prospectus. Any reference in this Agreement to the registration statement, the
Registration Statement, the Base Prospectus, any Prepricing Prospectus
Supplement or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act, as of the date of the registration statement, the Registration
Statement, such Prepricing Prospectus Supplement or the Prospectus, as the case
may be, and any reference to any amendment or supplement to the registration
statement, the Registration Statement, any Prepricing Prospectus Supplement or
the Prospectus shall be deemed to refer to and include any documents filed after
such date under the Securities Exchange Act of 1934, as amended (the "Exchange
Act") which, upon filing, are incorporated by reference therein, as required by
paragraph (b) of Item 12 of Form S-3. As used herein, the term "Incorporated
Documents" means the documents which at the time are incorporated by reference
in the registration statement, the Registration Statement, any Prepricing
Prospectus Supplement, the Prospectus, or any amendment or supplement thereto.
2. AGREEMENTS TO SELL AND PURCHASE. The Company hereby agrees, subject to all
the terms and conditions set forth herein, to issue and sell to the Underwriter
and, upon the basis of the representations, warranties and agreements of the
Company herein contained and subject to all the terms and conditions set forth
herein, the Underwriter agrees to purchase from the Company, at a purchase price
of $25.4719 per Share (the "purchase price per share"), the Shares. The Company
shall not be obligated to deliver any of the Shares except upon payment for all
the Shares to be purchased on the Closing Date as provided herein.
3. TERMS OF OFFERING.
The Company is advised by you that the Underwriter proposes to deposit the
Shares with the trustee of the Trust, a registered unit investment trust under
the Investment Company Act of 1940, as amended, for which PaineWebber
Incorporated acts as sponsor and depositor, in exchange for units in the Trust
(the "Offering") as soon after the execution and delivery hereof as in the
judgment of the Underwriter is advisable (and, if necessary, any post-effective
amendment to the Registration Statement).
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4. DELIVERY OF THE SHARES AND PAYMENT THEREFOR. Delivery to the Underwriter
of and payment for the Shares shall be made at the office of PaineWebber
Incorporated, 1285 Avenue of the Americas, 19th Floor, New York, NY 10019, at
10:00 A.M., New York City time, on May 29, 1998 (the "Closing Date"). The
place of closing for the Shares and the Closing Date may be varied by agreement
between you and the Company.
The parties acknowledge and agree that the Shares shall be maintained in
book-entry-only form. The Shares to be purchased hereunder shall be registered
in such names and in such denominations as you shall request prior to 1:00 P.M.,
New York City time, on the second business day preceding the Closing Date. The
Shares to be purchased hereunder shall be delivered to you on the Closing Date
against payment of the purchase price therefor in immediately available funds.
5. AGREEMENTS OF THE COMPANY. The Company agrees with the Underwriter as
follows:
(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 have been
previously 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 time when any amendment to the
Registration Statement becomes effective or when any supplement to Prospectus
has been filed.
(b) The Company will advise you promptly and, if requested by you, will confirm
such advice in writing: (i) of any request by the Commission for amendment of or
a supplement to the Registration Statement, any Prepricing Prospectus Supplement
or the Prospectus or for additional information; (ii) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of the suspension of qualification of the Shares for offering or
sale in any jurisdiction or the initiation of any proceeding for such purpose;
and (iii) within the period of time referred to in the first sentence of
paragraph (f) below, of any change in the Company's condition (financial or
other), business, prospects, properties, net worth or results of operations, or
of the happening of any event, which makes any statement of a material fact made
in the Registration Statement or the Prospectus (as then amended or
supplemented) untrue or which requires the making of any additions to or changes
in the Registration Statement or the Prospectus (as then amended or
supplemented)
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in order to state a material fact required by the Act to be stated therein or
necessary in order to make the statements therein not misleading, or of the
necessity to amend or supplement the Prospectus (as then amended or
supplemented) to comply with the Act or any other law. If at any time the
Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, the Company will make every reasonable effort to obtain
the withdrawal of such order at the earliest possible time.
(c) The Company will furnish to you upon your request, without charge (i) two
signed copies of the registration statement as originally filed with the
Commission and of each amendment thereto, including financial statements and all
exhibits to the registration statement, (ii) such number of conformed copies of
the registration statement as originally filed and of each amendment thereto,
but without exhibits, as you may reasonably request, (iii) such number of copies
of the Incorporated Documents, without exhibits, as you may reasonably request,
and (iv) two copies of the exhibits to the Incorporated Documents.
(d) Prior to the Closing Date, the Company will not file any amendment to the
Registration Statement or make any amendment or supplement to the Prospectus of
which you shall not previously have been advised or to which, after you shall
have received a copy of the document proposed to be filed, you shall reasonably
object.
(e) The Company will use its best efforts to meet the requirements to qualify
as a real estate investment trust (a "REIT") under the Internal Revenue Code of
1986, as amended (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.
(f) As soon after the execution and delivery of this Agreement as possible and
thereafter from time to time for such period as in the opinion of counsel for
the Underwriter a prospectus is required by the Act to be delivered in
connection with sales by the Underwriter or any dealer, the Company will
expeditiously deliver to the Underwriter and each dealer, without charge, as
many copies of the Prospectus (and of any amendment or supplement thereto) as
you may reasonably request. The Company consents to the use of the Prospectus
(and of any amendment or supplement thereto) in accordance with the provisions
of the Act and with the securities or Blue Sky laws of the jurisdictions in the
United States in which the Shares are offered by the Underwriter and by all
dealers to whom Shares may be sold, both in connection with the offering and
sale of the Shares and for such period of time thereafter as the Prospectus is
required by the Act to be delivered in connection with sales by any Underwriter
or dealer. If during such period of time any event shall occur that in the
judgment of the Company or in the reasonable opinion of counsel for the
Underwriter is required to be set forth in the Prospectus (as then amended or
supplemented) or should be set forth therein in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary to supplement or amend the Prospectus (or to
file under the Exchange Act any document which, upon filing, becomes an
Incorporated Document) in order to comply with the Act or any other law, the
Company will
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forthwith prepare and, subject to the provisions of paragraph (d) above, file
with the Commission an appropriate supplement or amendment thereto (or to such
document), and will expeditiously furnish to the Underwriter and any dealers a
reasonable number of copies thereof. In the event that the Company and you
agree that the Prospectus should be amended or supplemented, the Company, if
requested by you, will promptly issue a press release announcing or disclosing
the matters to be covered by the proposed amendment or supplement.
(g) The Company will cooperate with you and your counsel in connection with the
registration or qualification of the Shares for offering and sale by the
Underwriter and by any dealers under the securities or Blue Sky laws of such
jurisdictions in the United States as you may designate and will file such
consents to service of process or other documents necessary or appropriate in
order to effect such registration or qualification; provided that in no event
shall the Company be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action which would subject it to
service of process in suits, other than those arising out of the offering or
sale of the Shares, in any jurisdiction where it is not now so subject.
(h) The Company will make generally available to its security holders a
consolidated earnings statement, which need not be audited, covering a
twelve-month period commencing after the effective date of the Registration
Statement and ending not later than 15 months thereafter, as soon as practicable
after the end of such period, which consolidated earnings statement shall
satisfy the provisions of Section 11(a) of the Act.
(i) During the period of three years hereafter, the Company will furnish to you
as soon as available, a copy of each report of the Company mailed to
stockholders or filed with the Commission.
(j) If this Agreement shall terminate or shall be terminated after execution
pursuant to any provisions hereof (otherwise than by notice given by you
terminating this Agreement pursuant to Section 10 or Section 11 hereof, or by
reason of your default) or if this Agreement shall be terminated by the
Underwriter because of any failure or refusal on the part of the Company to
comply with the terms or fulfill any of the conditions of this Agreement, the
Company agrees to reimburse you for all out-of-pocket expenses (including fees
and expenses of your counsel) incurred by you in connection herewith, but the
Company shall not in any event be liable to the Underwriter for damages on
account of loss of anticipated profits from the sale by it of the Shares.
(k) The Company will apply the net proceeds from the sale of the Shares
substantially in accordance with the description set forth in the Prospectus
Supplement.
(l) Except as stated in this Agreement and in the Prospectus, the Company has
not taken, nor will it take, directly or indirectly, any action designed to or
that might reasonably be
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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.
(m) The Company will use its best efforts to have the shares of Common Stock
which it agrees to sell under this Agreement listed, subject to notice of
issuance, on the New York Stock Exchange on or before the Closing Date.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and
warrants to the Underwriter that:
(a) The Company and the transactions contemplated by this Agreement meet the
requirements for using Form S-3 under the Act. The registration statement in
the form in which it became or becomes effective and also in such form as it may
be when any post-effective amendment thereto shall become effective and the
Prospectus and any supplement or amendment thereto when filed with the
Commission under Rule 424(b) under the Act, complied or will comply in all
material respects with the provisions of the Act and will not at any such times
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, except that this representation and warranty does not apply to
statements in or omissions from the registration statement or the prospectus
made in reliance upon and in conformity with information relating to the
Underwriter furnished to the Company in writing by or on behalf of the
Underwriter through you expressly for use therein.
(b) The Incorporated Documents heretofore filed, when they were filed (or, if
any amendment with respect to any such document was filed, when such amendment
was filed), conformed in all material respects with the requirements of the
Exchange Act and the rules and regulations thereunder, any further Incorporated
Documents so filed will, when they are filed, conform in all material respects
with the requirements of the Exchange Act and the rules and regulations
thereunder; no such document when it was filed (or, if an amendment with respect
to any such document was filed, when such amendment was filed), contained an
untrue statement of a material fact or omitted 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 no
such further document, when it is filed, will contain an untrue statement of a
material fact or will omit 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.
(c) All the outstanding shares of Common Stock of the Company have been duly
authorized and validly issued, are fully paid and nonassessable and are free
of any preemptive or similar rights; the Shares have been duly authorized
and, when issued and delivered to the Underwriter against payment therefor
in accordance with the terms hereof, will be validly issued, fully paid and
nonassessable and free of any preemptive or similar
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rights; and the capital stock of the Company conforms to the description
thereof in the Registration Statement and the Prospectus.
(d) The Company is a corporation duly organized and validly existing in good
standing under the laws of the State of Maryland with corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Registration Statement and the Prospectus, and is duly
registered and qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the conduct of its
business requires such registration or qualification, except where the failure
so to register or qualify does not have a material adverse effect on the
condition (financial or other), business, properties, net worth or results of
operations of the Company and the Subsidiaries (as hereinafter defined) taken as
a whole.
(e) All the Company's subsidiaries (collectively, the "Subsidiaries") are
listed on Schedule II hereto. Each Subsidiary is a corporation, general
partnership, limited partnership, or limited liability company, as the case may
be, duly organized, validly existing and in good standing in the jurisdiction of
its incorporation or organization, with full corporate, partnership or limited
liability company power and authority to own, lease and operate its properties
and to conduct its business as described in the Registration Statement and the
Prospectus, and is duly registered and qualified to conduct its business and is
in good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration or
qualification, except where the failure so to register or qualify does not, in
the aggregate, have a material adverse effect on the condition (financial or
other), business, properties, net worth or results of operations of the Company
and the Subsidiaries, taken as a whole; except as set forth on Schedule II, all
the outstanding shares of capital stock of each of the Subsidiaries have been
duly authorized and validly issued, are fully paid and nonassessable. All of
the interests owned or held by the Company, directly or indirectly, in each of
the Subsidiaries are free and clear of any lien, adverse claim, security
interest, equity or other encumbrance, except for such as would not have a
material adverse effect on the condition (financial or other), business
properties, net worth or results of operations of the Company and the
Subsidiaries, taken as a whole.
(f) All of the joint ventures in which the Company or any Subsidiary owns any
interest (the "Joint Ventures") are listed on Schedule II hereto. The Company's
(or Subsidiary's, as the case may be) ownership interest in such Joint Venture
is as set forth on Schedule II. To the knowledge of the Company, each of the
Joint Ventures possesses such certificates, authorizations or permits issued by
the appropriate state, federal or foreign regulatory agencies or bodies
necessary to conduct the business now being conducted by it, as described or
incorporated by reference in the Prospectus, and none of the Joint Ventures has
received notice of any proceedings relating to the revocation or modification of
any such certificate, authority or permit which singly or in the aggregate, if
the subject of unfavorable ruling or decision, would have a material adverse
effect on the condition, financial or otherwise, or on the earnings, assets,
business affairs or business prospects of the Company and the
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Subsidiaries, taken as a whole; and, to the knowledge of the Company, each of
the Joint Ventures has good and marketable fee simple title to all of its real
property and marketable title to any improvements thereon and all other assets
that are used in the operation of the Joint Venture's business, except where the
failure to have such title would not have a material adverse effect on the
condition (financial or other), business, properties, net worth or results of
operations of the Company and the Subsidiaries, taken as a whole.
(g) There are no legal or governmental proceedings pending or, to the knowledge
of the Company, threatened, against the Company or any of the Subsidiaries, or
to which the Company or any of the Subsidiaries, or to which any of their
respective properties is subject, that are required to be described in the
Registration Statement or the Prospectus but are not described as required, and
there are no agreements, contracts, indentures, leases or other instruments that
are required to be described in the Registration Statement or the Prospectus or
to be filed as an exhibit to the Registration Statement or any Incorporated
Document that are not described or filed as required by the Act or the Exchange
Act.
(h) Neither the Company nor any of the Subsidiaries is in violation of its
certificate or articles of incorporation or by-laws, or other organizational
documents, or, of any law, ordinance, administrative or governmental rule or
regulation applicable to the Company or any of the Subsidiaries or of any decree
of any court or governmental agency or body having jurisdiction over the Company
or any of the Subsidiaries, or in default in the performance of any obligation,
agreement or condition contained in any bond, debenture, note or any other
evidence of indebtedness or in any material agreement, indenture, lease or other
instrument to which the Company or any of the Subsidiaries is a party or by
which any of them or any of their respective properties may be bound, except
where such violation or default does not have a material adverse effect on the
condition (financial or other), business, properties, net worth or results of
operations of the Company and the Subsidiaries, taken as a whole.
(i) Neither the issuance and sale of the Shares, the execution, delivery or
performance of this Agreement by the Company nor the consummation by the Company
of the transactions contemplated hereby (i) requires any consent, approval,
authorization or other order of or registration or filing with, any court,
regulatory body, administrative agency or other governmental body, agency or
official (except such as may be required for the registration of the Shares
under the Act and the Exchange Act and compliance with the securities or Blue
Sky laws of various jurisdictions, all of which have been or will be effected in
accordance with this Agreement) or conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under, the certificate
or articles of incorporation or bylaws, or other organizational documents, of
the Company or any of the Subsidiaries or (ii) conflicts or will conflict with
or constitutes or will constitute a breach of, or a default under, any
agreement, indenture, lease or other instrument to which the Company or any of
the Subsidiaries is a party or by which any of them or any of their respective
properties may be bound, or violates or will violate any statute, law,
regulation or filing or judgment, injunction, order or decree applicable to the
Company or any of the Subsidiaries or any of their respective
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properties, or will result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of the
Subsidiaries pursuant to the terms of any agreement or instrument to which any
of them is a party or by which any of them may be bound or to which any of the
property or assets of any of them is subject.
(j) Coopers & Lybrand L.L.P. and Price Waterhouse LLP, the accounting firms
which have certified or shall certify the financial statements included or
incorporated by reference in the Registration Statement and the Prospectus (or
any amendment or supplement thereto) are independent public accounting firms
within the meaning of the Act and the Rules and Regulations.
(k) The financial statements, together with related schedules and notes,
included or incorporated by reference in the Registration Statement and the
Prospectus (and any amendment or supplement thereto), present fairly the
consolidated financial position, results of operations and changes in financial
position of the Company and the Subsidiaries on the basis stated in the
Registration Statement at the respective dates or for the respective periods to
which they apply; such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed
therein; and the other financial and statistical information and data included
or incorporated by reference in the Registration Statement and the Prospectus
(and any amendment or supplement thereto) are fairly presented and prepared on a
basis consistent with such financial statements and the books and records of the
Company and the Subsidiaries.
(l) The execution and delivery of, and the performance by the Company of its
obligations under, this Agreement have been duly and validly authorized by the
Company, and this Agreement has been duly executed and delivered by the Company
and constitutes the valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as rights
to indemnity and contribution hereunder may be limited by federal or state
securities laws.
(m) Except as disclosed in the Registration Statement and the Prospectus (or
any amendment or supplement thereto), subsequent to the respective dates as of
which such information is given in the Registration Statement and the Prospectus
(or any amendment or supplement thereto), neither the Company nor any of the
Subsidiaries has incurred any liability or obligation, direct or contingent, or
entered into any transaction, not in the ordinary course of business, that is
material to the Company and the Subsidiaries taken as a whole, and there has not
been any change in the capital stock, or material increase in the short-term
debt or long-term debt, of the Company or any of the Subsidiaries other than as
a result of borrowings made by the Company under its credit facility in the
ordinary course of business, or any material adverse change, or any development
involving or which may reasonably be expected to involve, a prospective material
adverse change, in the condition
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(financial or other), business, net worth or results of operations of the
Company and the Subsidiaries taken as a whole.
(n) (i) The Company has good and marketable title to all of the properties
(including the Properties listed as wholly owned by the Company or its
affiliates on Schedule I hereto) and assets reflected in the financial
statements (or as described in or incorporated by reference into the
Registration Statement or Prospectus) hereinabove described, subject to no lien,
mortgage, pledge, charge or encumbrance of any kind except those reflected in
such financial statements (or as described in or incorporated by reference into
the Registration Statement or Prospectus) or which are not material in amount;
(ii) the Company occupies its leased properties under valid and binding leases
conforming, to the extent such leases are described therein, to the description
thereof set forth in or incorporated by reference into the Registration
Statement or Prospectus; (iii) no tenant of any of the Properties is in default
under any of the leases pursuant to which any property is leased (and the
Company does not know of any event which, but for the passage of time or the
giving of notice, or both, would constitute a default under any of such leases)
other than such defaults that would not have a material adverse effect on the
condition, financial or otherwise, or on the earnings, assets, business affairs
or business prospects of the Company and the Subsidiaries taken as a whole; (iv)
no person has an option to purchase all or part of any Property or any interest
therein other than (x) rights with respect to certain Properties owned by the
Joint Ventures in favor of the partners to such Joint Ventures pursuant to the
agreements governing the Joint Ventures or (y) options which, if exercised,
would not have a material adverse effect on the Company and the Subsidiaries,
taken as a whole; (v) each of the Properties complies with all applicable codes,
laws and regulations (including, without limitation, building and zoning codes,
laws and regulations and laws relating to access to the properties) and with all
agreements between the Company and third parties relating to the ownership or
use of any Property by the Company, except if and to the extent disclosed in the
Registration Statement or the Prospectus and except for such failures to comply
that would not have a material adverse effect on the condition, financial or
otherwise, or on the earnings, assets, business affairs or business prospects of
the Company and the Subsidiaries taken as a whole; (vi) there is in effect for
the assets of the Company and the Properties insurance coverages that are
commercially reasonable and that are consistent with the types and amounts of
insurance typically maintained by prudent owners of similar assets, and the
Company has not received from any insurance company notice of any material
defects or deficiencies affecting the insurability of any such assets; and (vii)
the Company does not have any knowledge of any pending or threatened
condemnation proceedings, zoning change, or other similar proceeding or action
that will in any material respect affect the size of, use of, improvements on,
construction on or access to the Properties, except for such proceedings or
actions that would not have a material adverse effect on the condition
(financial or other), business, properties, net worth or results of operations
of the Company and the Subsidiaries, taken as a whole.
(o) The Company has title policies in effect or binding commitments from title
insurance companies for the issuance of title insurance on each of the
Properties, except where the
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failure to have such title insurance would not have a material adverse effect on
the condition (financial or other), business, properties, net worth or results
of operations of the Company and the Subsidiaries, as a whole.
(p) The Company has not distributed and, prior to the later to occur of (i) the
Closing Date and (ii) completion of the distribution of the Shares, will not
distribute any offering material in connection with the offering and sale of the
Shares other than the Registration Statement, the Prepricing Prospectus, the
Prospectus or other materials, if any, permitted by the Act.
(q) The Company and each of the Subsidiaries has such permits, licenses,
franchises and authorizations of governmental or regulatory authorities
("permits") and agreements with third parties relating to ownership or use of
any Property by the Company as are necessary to own its respective properties
and to conduct its business in the manner described in the Prospectus, subject
to such qualifications as may be set forth in the Prospectus and except where
the omission to have such permits and agreements would not have a material
adverse effect on the condition (financial or other), business, properties, net
worth or results of operations of the Company and the Subsidiaries, taken as a
whole; the Company and each of the Subsidiaries has fulfilled and performed all
its material obligations with respect to such permits and agreements and no
event has occurred which allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other material impairment of
the rights of the holder of any such permit or agreement, subject in each case
to such qualification as may be set forth in the Prospectus; and, except as
described in the Prospectus, none of such permits or agreements contains any
restriction that would have a material adverse effect on the condition
(financial or other), business, properties, net worth or results of operations
of the Company and the Subsidiaries, taken as a whole.
(r) The Company maintains a system of internal accounting controls sufficient
to provide reasonable assurances that (i) transactions are executed in
accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(s) To the Company's knowledge, neither the Company nor any of its Subsidiaries
nor any employee or agent of the Company or any Subsidiary has made any payment
of funds of the Company or any Subsidiary or received or retained any funds in
violation of any law, rule or regulation, which payment, receipt or retention of
funds is of a character required to be disclosed in the Prospectus.
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(t) The Company and each of the Subsidiaries have filed all federal, state and
foreign tax returns required to be filed, which returns are complete and
correct, and neither the Company nor any Subsidiary is in default in the payment
of any taxes which were payable pursuant to said returns or any assessments with
respect thereto, except where such failure to file or default in payment would
not have a material adverse effect on the condition (financial or other),
business, properties, net worth or results of operations of the Company and the
Subsidiaries, taken as a whole.
(u) No holder of any security of the Company has any right to require
registration of shares of Common Stock or any other security of the Company
because of the filing of the registration statement or consummation of the
transactions contemplated by this Agreement.
(v) The Company and the Subsidiaries own or possess in the United States all
patents, trademarks, trademark registrations, service marks, service mark
registrations, trade names, copyrights, licenses, inventions, trade secrets and
rights described in the Prospectus as being owned by them or any of them or
necessary for the conduct of their respective businesses and the Company is not
aware of any claim to the contrary or any challenge by any other person in the
United States or in any foreign jurisdiction to the rights of the Company and
the Subsidiaries with respect to the foregoing which claim or challenge, if
determined adversely to the Company, would have a material adverse effect on the
condition (financial or otherwise), business, properties, net worth or results
of operations of the Company and the Subsidiaries, taken as a whole.
(w) Except as otherwise disclosed in the Prospectus, the Company has not
authorized or conducted and does not have knowledge of the generation,
transportation, storage, presence, use, treatment, disposal, release, or other
handling of any hazardous substance, hazardous waste, hazardous material,
hazardous constituent, toxic substance, pollutant, contaminant, asbestos, radon,
polychlorinated biphenyls ("PCBs"), petroleum product or waste (including crude
oil or any fraction thereof), natural gas, liquefied gas, synthetic gas or other
material defined, regulated, controlled or potentially subject to any
remediation requirement under any environmental law (collectively, "Hazardous
Materials"), on, in, under or affecting any real property currently leased or
owned or by any means controlled by the Company, including the Properties (the
"Real Property"), except where such non-compliance would not have a material
adverse effect on the condition (financial or other), business, properties, net
worth or results of operations of the Company and the Subsidiaries, taken as a
whole; to the knowledge of the Company, the Real Property and the Company's
operations with respect to the Real Property are in compliance with all federal,
state and local laws, ordinances, rules, regulations and other governmental
requirements relating to pollution, control of chemicals, management of waste,
discharges of materials into the environment, health, safety, natural resources,
and the environment (collectively, "Environmental Laws"), except where such
non-compliance would not have a material adverse effect on the condition
(financial or other), business, properties, net worth or results of operations
of the Company and the Subsidiaries, taken as a whole, and the Company has, and
is in compliance with, all licenses,
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permits, registrations and government authorizations necessary to operate under
all applicable Environmental Laws, except where the failure to have or comply
with such license, permit, registration or authorization would not have a
material adverse effect on the condition (financial or other), business,
properties, net worth or results of operations of the Company and the
Subsidiaries, taken as a whole. Except as otherwise disclosed in the
Prospectus, the Company has not received any written notice from any
governmental entity and to the knowledge of the Company there is no pending or
threatened claim, litigation or any administrative agency proceeding that:
alleges a violation of any Environmental Laws by the Company; alleges that the
Company is a liable party or a potentially responsible party under the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
Section 9601, ET SEQ., or any state superfund law; has resulted in or could
result in the attachment of an environmental lien on any of the Real Property;
or alleges that the Company is liable for any contamination of the environment,
contamination of the Real Property, damage to natural resources, property
damage, or personal injury based on their activities or the activities of their
predecessors or third parties (whether at the Real Property or elsewhere)
involving Hazardous Materials, and arising under the Environmental Laws or
common law principles, except for such claims, litigation or proceedings as
would not be expected to have a material adverse effect on the condition
(financial or other), business, properties net worth or results of the Company
and the Subsidiaries, taken as a whole.
(x) The Company is organized in conformity with the requirements for
qualification as a real estate investment trust under the Code, and the
Company's method of operation enables it to meet the requirements for taxation
as a real estate investment trust under the Code.
(y) None of the Company nor any Subsidiary is or will become as a result of the
transactions contemplated hereby, "an investment company," or a company
"controlled" by an "investment company," within the meaning of the Investment
Company Act of 1940, as amended.
(z) The statements set forth in the Prospectus under the caption "Federal
Income Tax Considerations," insofar as they purport to describe the provisions
of the laws and documents referred to therein, are accurate and complete.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless you, your directors,
officers, employees and agents and each person, if any, who controls the
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act from and against any and all losses, claims, liabilities, expenses
and damages (including, but not limited to, any and all investigative, legal and
other expenses reasonably incurred in connection with, and any and all amounts
paid in settlement of, any action, suit or proceeding between any of the
indemnified parties and any indemnifying parties or between any indemnified
party and any third party, or otherwise, or any claim asserted), as and when
incurred to which the
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Underwriter, or any such person, 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, liabilities, expenses or damages
arise out of or are based on (i) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus, the
Registration Statement or the Prospectus or any amendment or supplement to the
Registration Statement or the Prospectus or in any documents filed under the
Exchange Act and deemed to be incorporated by reference into the Prospectus, or
in any application or other document executed by or on behalf of the Company or
based on written information furnished by or on behalf of the Company filed with
the Commission, (ii) the omission or alleged omission to state in such document
a material fact required to be stated in it or necessary to make the statements
in it, in the light of the circumstances under which they were made, not
misleading or (iii) any act or failure to act or any alleged act or failure to
act by the Underwriter in connection with, or relating in any manner to, the
Shares or the offering contemplated hereby, and which is included as part of or
referred to in any loss, claim, damage, liability or action arising out of or
based upon matters covered by clause (i) or (ii) above; provided that the
Company will not be liable to the extent that such loss, claim, liability,
expense or damage (a) arises from the sale of the Shares to any person and is
based on an untrue statement or omission or alleged untrue statement or omission
made in reliance on and in conformity with information relating to the
Underwriter furnished in writing to the Company by the Underwriter expressly for
inclusion in the Registration Statement or the Prospectus, or (b) results solely
from an untrue statement of a material fact contained in, or the omission of a
material fact from, such preliminary prospectus, which untrue statement or
omission was corrected in the Prospectus (as then amended or supplemented) if
the Underwriters sold Shares to the person alleging such loss, claim, liability,
expense or damage without sending or giving, at or prior to the written
confirmation of such sale, a copy of the Prospectus (as then amended or
supplemented) if the Company had previously furnished copies thereof to the
Underwriters within a reasonable amount of time prior to such sale or such
confirmation, and the Underwriters failed to deliver the corrected Prospectus,
if required by law to have so delivered it and if delivered would have been a
complete defense against the person asserting such loss, claim, liability,
expense or damage. This indemnity agreement will be in addition to any
liability that the Company might otherwise have.
(b) The Underwriter will indemnify and hold harmless the Company, the Company's
employees and agents, each person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, each
director of the Company and each officer of the Company who signs the
Registration Statement to the same extent as the foregoing indemnity from the
Company to the Underwriter, but only insofar as losses, claims, liabilities,
expenses or damages arise out of or are based on any untrue statement or
omission or alleged untrue statement or omission made in reliance on and in
conformity with information relating to the Underwriter furnished in writing to
the Company by or on behalf of the Underwriter expressly for use in the
Registration Statement or the Prospectus. This indemnity will be in addition to
any liability that the Underwriter might otherwise have;
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<PAGE>
provided, however, that in no case shall the Underwriter be liable or
responsible for any amount in excess of the underwriting discounts and
commissions received by the Underwriter.
(c) Any party that proposes to assert the right to be indemnified under this
Section 7 will, promptly after receipt of notice of commencement of any action
against such party in respect of which a claim is to be made against an
indemnifying party or parties under this Section 7, notify each such
indemnifying party of the commencement of such action, enclosing a copy of all
papers served, but the omission so to notify such indemnifying party will not
relieve it from any liability that it may have to any indemnified party under
the foregoing provisions of this Section 7 unless, and only to the extent that,
such omission results in the forfeiture of substantive rights or defenses by the
indemnifying party. If any such action is brought against any indemnified party
and it notifies the indemnifying party of its commencement, the indemnifying
party will be entitled to participate in and, to the extent that it elects by
delivering written notice to the indemnified party promptly after receiving
notice of the commencement of the action from the indemnified party, jointly
with any other indemnifying party similarly notified, to assume the defense of
the action, with counsel reasonably satisfactory to the indemnified party, and
after notice from the indemnifying party to the indemnified party of its
election to assume the defense, the indemnifying party will not be liable to the
indemnified party for any legal or other expenses except as provided below and
except for the reasonable costs of investigation subsequently incurred by the
indemnified party in connection with the defense. The indemnified party will
have the right to employ its own counsel in any such action, but the fees,
expenses and other charges of such counsel will be at the expense of such
indemnified party unless (i) the employment of counsel by the indemnified party
has been authorized in writing by the indemnifying party, (ii) the indemnified
party has reasonably concluded (based on advice of counsel) that there may be
legal defenses available to it or other indemnified parties that are different
from or in addition to those available to the indemnifying party, (iii) a
conflict or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (iv) the indemnifying
party has not in fact employed counsel to assume the defense of such action
within a reasonable time after receiving notice of the commencement of the
action, in each of which cases the reasonable fees, disbursements and other
charges of counsel will be at the expense of the indemnifying party or parties.
It is understood that the indemnifying party or parties shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be liable
for the reasonable fees, disbursements and other charges of more than one
additional firm admitted to practice in such jurisdiction at any one time for
all such indemnified party or parties. All such fees, disbursements and other
charges will be reimbursed by the indemnifying party promptly as they are
incurred. An indemnifying party will not be liable for any settlement of any
action or claim effected without its written consent (which consent will not be
unreasonably withheld); provided, however, no indemnifying party shall, without
the prior written consent of each indemnified party, settle
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<PAGE>
or compromise or consent to the entry of any judgment in any pending or
threatened claim, action or proceeding relating to the matters contemplated by
this Section 7 (whether or not any indemnified party is a party thereto), unless
such settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising or that may arise out of such
claim, action or proceeding.
(d) In order to provide for just and equitable contribution in circumstances in
which the indemnification provided for in the foregoing paragraphs of this
Section 7 is applicable in accordance with its terms but for any reason is held
to be unavailable from the Company or the Underwriter, the Company and the
Underwriter will contribute to the total losses, claims, liabilities, expenses
and damages (including any investigative, legal and other expenses reasonably
incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claim asserted) to which the Company and the
Underwriter may be subject in such proportion as shall be appropriate to reflect
the relative benefits received by the Company on the one hand and the
Underwriter on the other. The relative benefits received by the Company on the
one hand and the Underwriter on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriter, in each case as set forth on the cover
page of the Prospectus Supplement. If, but only if, the allocation provided by
the forgoing sentence is not permitted by applicable law, the allocation of
contribution shall be made in such proportion as is appropriate to reflect not
only the relative benefits referred to in the foregoing sentence but also the
relative fault of the Company on the one hand, and the Underwriter, on the
other, with respect to the statements or omissions which resulted in such loss,
claim, liability, expense or damage, or action in respect thereof, as well as
any other relevant equitable considerations with respect to such offering. Such
relative fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or the Underwriter,
the intent of the parties and their relative knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and the Underwriter agree it would not be just and equitable if contributions
pursuant to this Section 7(d) were to be determined by pro rata allocation or by
any other method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, liability, expense or damage, or action in
respect thereof, referred to above in this Section 7(d) shall be deemed to
include, for purpose of this Section 7(d), 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
Section 7(d), the Underwriter shall not be required to contribute any amount in
excess of the underwriting discounts and commissions received by the Underwriter
and no person found guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) will be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this
Section 7(d), any person who controls a party to this Underwriting Agreement
within the meaning of
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the Act will have the same rights to contribution as that party, and each
officer of the Company who signed the Registration Statement will have the same
rights to contribution as the Company, subject in each case to the provisions
hereof. Any party entitled to contribution, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim for
contribution may be made under this Section 7(d), will notify any such party or
parties from whom contribution may be sought, but the omission so to notify will
not relieve the party or parties from whom contribution may be sought from other
obligation it or they may have under this Section 7(d). No party will liable
for contribution with respect to any action or claim settled without its written
consent (which consent will not be unreasonably withheld).
(e) The indemnity and contribution agreements contained in this Section 7 and
the representations and warranties of the Company contained in this Underwriting
Agreement shall remain operative and in full force and effect regardless of (i)
any investigation made by or on behalf of the Underwriter, (ii) acceptance of
the Shares and payment therefor or (iii) any termination of this Underwriting
Agreement; provided that, if the Underwriter with actual knowledge of (x) a
default in any of the covenants, agreements or obligations to be performed by
the Company under this Agreement or under any closing document, and/or (y) any
breach of any representation or warranty of the Company made in this Agreement
or any closing document, nonetheless elects to proceed to closing, then upon the
consummation of the closing, the Underwriter shall be deemed to have waived any
such default and breach and shall have no claim against the Company with respect
thereto, or any termination right hereunder by reason thereof, provided that the
Company shall sustain the burden of proving actual knowledge.
8. CONDITIONS OF UNDERWRITER'S OBLIGATIONS. The obligations of the
Underwriter to purchase the Shares hereunder are subject to the following
conditions:
(a) All filings required by Rules 424 and 430A under the Act shall have been
timely made; no stop order suspending the effectiveness of the registration
statement shall have been issued and no proceeding for that purpose shall have
been instituted or, to the knowledge of the Company or the Underwriter,
threatened 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) Subsequent to the effective date of this Agreement, there shall not have
occurred (i) any change, or any development involving a prospective change, in
or affecting the condition (financial or other), business, properties, net
worth, or results of operations of the Company or the Subsidiaries not
contemplated by the Prospectus, which in your opinion would materially,
adversely affect the market for the Shares, or (ii) any event or development
relating to or involving the Company or any officer or director of the Company
which makes any statement made in the Prospectus untrue in any material respect
or which, in the opinion of the Company and its counsel or the Underwriter and
its counsel, requires the making of
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any addition to or change in the Prospectus in order to state a material fact
required by the Act or any other law to be stated therein or necessary in order
to make the statements therein not misleading, if amending or supplementing the
Prospectus to reflect such event or development would, in your opinion, have a
material adverse effect on the market for the Shares.
(c) You shall have received on the Closing Date, an opinion of O'Melveny &
Myers LLP, special counsel for the Company, dated the Closing Date and addressed
to you substantially in the form of Annex A hereto. In rendering their opinion
as aforesaid, counsel may rely upon an opinion or opinions, each dated the
Closing Date, of other counsel retained by them or the Company as to laws of any
jurisdiction, provided that (1) each such local counsel is acceptable to you,
and (2) such reliance is expressly authorized by each opinion so relied upon and
a copy of each such opinion is delivered to you and is, in form and substance
satisfactory to them and their counsel.
(d) You shall have received on the Closing Date an opinion of Mayer, Brown &
Platt, special counsel for the Underwriter, dated the Closing Date and addressed
to you with respect to the matters referred to in clauses (vi) (as to due
authorization and valid issuance), (xii), (xv) and the paragraph immediately
following clause (xix) of Annex A hereto and such other related matters as you
may request. In rendering their opinion as aforesaid, counsel may rely upon an
opinion or opinions, each dated the Closing Date, of other counsel retained by
them or the Company as to laws of any jurisdiction, provided that (1) each such
local counsel is acceptable to you, and (2) such reliance is expressly
authorized by each opinion so relied upon and a copy of each such opinion is
delivered to you and is, in form and substance satisfactory to them and their
counsel.
(e) You shall have received letters addressed to you and dated the date hereof
and the Closing Date from Coopers & Lybrand L.L.P., independent certified public
accountants, substantially in the forms heretofore approved by you.
(f) (i) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been taken or, to the knowledge of the Company, shall be contemplated by the
Commission at or prior to the Closing Date; (ii) there shall not have been any
change in the capital stock of the Company nor any material increase in the
short-term or long-term debt of the Company (other than in the ordinary course
of business) from that set forth or contemplated in the Registration Statement
or the Prospectus (or any amendment or Supplement thereto); (iii) there shall
not have been, since the respective dates as of which information is given in
the Registration Statement and the Prospectus (or any amendment or supplement
thereto), except as may otherwise be stated in the Registration Statement and
Prospectus (or any amendment or supplement thereto), any material adverse change
in the condition (financial or other), business, prospects, properties, net
worth or results of operations of the Company and the Subsidiaries taken as a
whole; (iv) the Company and the Subsidiaries shall not have any liabilities or
obligations, direct or
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contingent (whether or not in the ordinary course of business), that are
material to the Company and the Subsidiaries, taken as a whole, other than those
reflected in the Registration Statement or the Prospectus (or any amendment or
supplement thereto); and (v) all the representations and warranties of the
Company contained in this Agreement shall be true and correct on and as of the
date hereof and on and as of the Closing Date as if made on and as of the
Closing Date, and you shall have received a certificate, dated the Closing Date
and signed on behalf of the Company by the chief executive officer and the chief
financial officer of the Company (or such other officers as are acceptable to
you), to the effect set forth in this Section 8(f) and in Section 8(g) hereof.
(g) The Company shall not have failed at or prior to the Closing Date to have
performed or complied with any of its agreements herein contained and required
to be performed or complied with by it hereunder at or prior to the Closing
Date.
(h) Prior to the Closing Date the Shares shall have been listed, subject to
notice of issuance, on the New York Stock Exchange.
(i) The Company shall have furnished or caused to be furnished to you such
further certificates and documents as you shall have requested.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to you and your counsel.
Any certificate or document signed by any officer of the Company and delivered
to you or to your counsel at the Closing shall be deemed a representation and
warranty by the Company to the Underwriter as to the statements made therein.
9. EXPENSES. The Company agrees to pay the following costs and expenses and
all other costs and expenses incident to the performance by it of its
obligations hereunder: (i) the preparation, printing or reproduction, and filing
with the Commission of the Registration Statement (including financial
statements and exhibits thereto), the Prospectus, the Prospectus Supplement and
each amendment or supplement to any of them; (ii) the printing (or reproduction)
and delivery (including postage, air freight charges and charges for counting
and packaging) of such copies of the Registration Statement, the Prospectus, the
Incorporated Documents, and all amendments or supplements to any of them, as may
be reasonably requested for use in connection with the offering and sale of the
Shares; (iii) the preparation, printing, authentication, issuance and delivery
of certificates for the Shares, including any stamp taxes in connection with the
original issuance and sale of the Shares; (iv) the printing (or reproduction)
and delivery of this Agreement, the Blue Sky Memorandum and all other agreements
or documents printed (or reproduced) and delivered in connection with the
offering of the Shares; (v) the listing of the Shares on the New York Stock
Exchange; (vi) the registration or qualification of the Shares for offer and
sale under the securities or Blue Sky laws of the several states as provided in
Section 5(g) hereof (including the reasonable
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fees, expenses and disbursements of counsel for the Underwriter relating to the
preparation, printing or reproduction, and delivery of the Blue Sky Memorandum
and such registration and qualification); (vii) the filing fees in connection
with any filings required to be made with the National Association of Securities
Dealers, Inc.; (viii) the transportation and other expenses incurred by or on
behalf of Company representatives in connection with presentations to
prospective purchasers of the Shares; and (ix) the fees and expenses of the
Company's accountants and the fees and expenses of counsel (including local and
special counsel) for the Company; provided that, except as provided in this
Section 9 and Section 5, you shall pay your own costs and expenses, including
the costs and expenses of your counsel, any transfer taxes on the Shares which
you may sell and the expenses of advertising any offering of the Shares made by
you.
10. TERMINATION OF AGREEMENT. The Underwriter shall have the right by
giving notice as hereinafter specified at any time at or prior to the Closing
Date to terminate this Underwriting Agreement if (i) trading on the NYSE shall
have been wholly suspended, (ii) minimum or maximum prices for trading shall
have been fixed, or maximum ranges for prices for the Common Stock shall have
been required, on the NYSE by the NYSE or by order of the Commission or any
other governmental authority having jurisdiction, (iii) a banking moratorium
shall have been declared by federal or New York authorities, or (iv) an outbreak
of major hostilities in which the United States is involved, a declaration of
war by Congress, any other substantial national or international calamity or any
other event or occurrence of a similar character shall have occurred since the
execution of this Underwriting Agreement that, in the Underwriter's judgment,
makes it impractical or unadvisable to proceed with the completion of the sale
of and payment for the Shares. Any such termination shall be without liability
of any party to any other party with respect to Shares not purchased by reason
of such termination except that the provisions of Sections 5(j), 7 and 9 hereof
shall at all times be effective. If the Underwriter elects to terminate this
Underwriting Agreement as provided in this Section, the Company shall be
notified promptly by the Underwriter by telephone, telex or telecopy, confirmed
by letter.
11. INFORMATION FURNISHED BY THE UNDERWRITER. The Underwriter confirms to the
Company and the Company acknowledges that only the following information
appearing in the Prospectus with respect to the public offering of the Shares
has been furnished to the Company by or on behalf of the Underwriter for use in
the Prospectus: (i) the name of the Underwriter contained on the cover page and
back cover page of the Prospectus Supplement; (ii) the stabilization legend on
the inside front cover page of the Prospectus Supplement; and (iii) the
information in the second sentence in the second to last paragraph and the first
sentence in the last paragraph on the cover page, and paragraphs 2, 4, 5 and 6
under the caption "Underwriting" in the Prospectus Supplement.
12. MISCELLANEOUS. Except as otherwise provided in Sections 5 and 10 hereof,
notice given pursuant to any provision of this Agreement shall be in writing and
shall be delivered (i) if to the Company, at the office of the Company at 401
Wilshire Boulevard, No. 700,
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Santa Monica, California 90401, Attention: General Counsel; or (ii) if to you at
1285 Avenue of the Americas, 19th Floor, New York, New York 10019, Attention:
Corporate Finance Department.
This Agreement has been and is made solely for the benefit of the Underwriter,
the Company, its directors and officers, and the other controlling persons
referred to in Section 7 hereof and their respective successors and assigns, to
the extent provided herein, and no other person shall acquire or have any right
under or by virtue of this Agreement. Neither the term "successor" nor the term
"successors and assigns" as used in this Agreement shall include a purchaser
from the Underwriter of any of the Shares in his status as such purchaser.
13. APPLICABLE LAW; COUNTERPARTS. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which together constitute
one and the same instrument. If signed in counterparts, this Agreement shall
not become effective unless at least one counterpart hereof shall have been
executed and delivered on behalf of each party hereto.
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Please confirm that the foregoing correctly sets forth the agreement between the
Company and the Underwriter.
Very truly yours,
THE MACERICH COMPANY
By: /s/ Richard A. Bayer
Name: Richard A. Bayer
Title: General Counsel and Secretary
Confirmed as of the date first
above mentioned.
PAINEWEBBER INCORPORATED
By: /s/ David Jarvis
Name: David Jarvis
Title: Managing Director
S-1
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EXHIBIT 5.1
May
29th
1 9 9 8
528,715-096
The Macerich Company
401 Wilshire Boulevard
Suite 700
Santa Monica, CA 90401
Re: Sale of 1,864,802 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 1,864,802 shares (the "Shares") of Common Stock, $.01 par value per
share, by the Company pursuant to an Underwriting Agreement dated May 27, 1998
(the "Underwriting Agreement") between PaineWebber Incorporated 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.
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We have, with your approval, assumed that the signatures on all
documents examined by us are genuine, that all 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 May 27, 1998, and the use to
the name of our firm therein.
Respectfully submitted,
/s/ O'MELVENY & MYERS LLP
