260,000 Shares
CAMDEN PROPERTY TRUST
Common Shares of Beneficial Interest
(par value $0.01 per share)
UNDERWRITING AGREEMENT
October 10, 1996
PAINEWEBBER INCORPORATED
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Dear Sirs:
Camden Property Trust, a Texas real estate investment trust
(the "Company"), proposes to sell an aggregate of 260,000 shares
(the "Shares") of the Company's common shares of beneficial
interest, $.01 par value per share (the "Common Shares"), to you
(hereinafter the "Underwriter").
The public offering price per share for the Shares and the
purchase price per share for the Shares to be paid by the
Underwriter shall be agreed upon by the Company and the
Underwriter, and such agreement shall be set forth in a separate
written instrument substantially in the form of ] hereto (the
"Price Determination Agreement"). The Price Determination
Agreement may take the form of an exchange of any standard form
of written telecommunication among the Company and the
Underwriter and shall specify such applicable information as is
indicated in Exhibit A hereto. The offering of the Shares will
be governed by this Agreement, as supplemented by the Price
Determination Agreement. From and after the date of the
execution and delivery of the Price Determination Agreement this
Agreement shall be deemed to incorporate, and, unless the context
otherwise indicates, all references contained herein to "this
Agreement" and to the phrase "herein" shall be deemed to include,
the Price Determination Agreement.
The Company confirms as follows its agreements with the
Underwriter.
1. Agreement to Sell and Purchase.
(a) On the basis of the representations, warranties and
agreements of the Company herein contained and subject to all the
terms and conditions of this Agreement, the Company agrees to
sell to the Underwriter, and the Underwriter agrees to purchase
from the Company at the purchase price per share for the Shares
to be agreed upon by the Underwriter and the Company in
accordance with Section l(c) hereof and set forth in the Price
Determination Agreement, the Shares.
(b) The public offering price per share for the Shares
and the purchase price per share for the Shares to be paid by the
Underwriter shall be agreed upon and set forth in the Price
Determination Agreement.
2. Delivery and Payment. Delivery of the Shares shall be
made to the Underwriter against payment of the purchase price by
wire transfer of same day funds at the office of PaineWebber
Incorporated, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇. Such payments shall be made at 10:00 a.m., New York City
time, on the fourth business day following the date of this
Agreement (or if the NYSE or American Stock Exchange or
Commercial banks in the City of New York are not open on such
day, the next day on which such exchanges and banks are open), or
at such time on such other date, not later than eight full
business days after the date of this Agreement, as may be agreed
upon by the Company and the Underwriter (such date is hereinafter
referred to as the ("Closing Date").
If requested by the Underwriter, certificates evidencing the
Shares shall be in definitive form and shall be registered in
such names and in such denominations as the Underwriter shall
request.
The cost of original issue tax stamps, if any, in connection
with the issuance and delivery of the Shares by the Company to
the Underwriter shall be borne by the Company. The Company will
pay and save the Underwriter and any subsequent holder of the
Shares harmless from any and all liabilities with respect to or
resulting from any failure or delay in paying Federal and state
stamp and other transfer taxes, if any, which may be payable or
determined to be payable in connection with the original issuance
or sale to the Underwriter of the Shares.
3. Representations and Warranties of the Company. The
Company represents, warrants and covenants to the Underwriter
that:
(a) The Company meets the requirements for use of Form
S-3 and a registration statement (Registration No. 333- 84536) on
Form S-3 relating to the Shares, including a prospectus, has been
carefully prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the
"Act"), and the rules and regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder and has been filed with the Commission
and has become effective. Such registration statement and
prospectus may have been amended or supplemented prior to the
date of this Agreement; any such amendment or supplement was so
prepared and filed, and any such amendment filed after the
effective date of such registration statement has become
effective. No stop order suspending the effectiveness of the
registration statement has been issued, and no proceeding for
that purpose has been instituted or, to the Company's knowledge,
threatened by the Commission. Copies of such registration
statement and prospectus, any such amendments or supplements and
all documents incorporated by reference therein that were filed
with the Commission on or prior to the date of this Agreement
have been delivered or made available to the Underwriter. A
prospectus supplement (the "Prospectus Supplement") setting forth
the terms of the Common Shares and of their sale and distribution
have 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). Any reference herein
to the Registration Statement, the Prospectus or any amendment or
supplement thereto shall be deemed to refer to and include the
exhibits thereto (or, in the case of the Prospectus, to the
exhibits to the Registration Statement) and the documents
incorporated by reference therein, and any reference herein to
the terms "amend," "amendment" or supplement" with respect to
Registration Statement or Prospectus shall be deemed to refer to
and include the filing after the execution hereof of any document
with the Commission deemed to be incorporated by reference
therein.
(b) Each part of the Registration Statement, when such
part became or becomes effective and the Prospectus and any
amendment or supplement thereto, on the date of filing thereof
with the Commission and at the Closing Date, including the
financial statements included or to be included or incorporated
by reference or to be incorporated by reference into the
Prospectus, conformed or will conform in all material respects
with the requirements of the Act, the Exchange Act, the rules and
regulations thereunder (the "Exchange Act Rules and Regulations")
and the Rules and Regulations and will contain all statements
required to be stated therein in accordance with the Act, the
Exchange Act, the Exchange Act Rules and Regulations and the
Rules and Regulations; each part of the Registration Statement,
when such part became or becomes effective, did not or will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading; and the Prospectus and any
amendment or supplement thereto, on the date of filing thereof
with the Commission and at the Closing Date, did not or will not
include an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading. The foregoing representations and warranties in this
Section 3(b) do not apply to any statements or omissions made in
reliance on and in conformity with information relating to the
Underwriter furnished in writing to the Company by the
Underwriter specifically for inclusion in the Registration
Statement or Prospectus or any amendment or supplement thereto.
The Company acknowledges that the statements set forth under the
heading "Underwriting" in the Registration Statement, the
Prospectus constitute the only information relating to any
Underwriter furnished in writing to the Company by the
Underwriter on behalf of the Underwriter expressly for inclusion
in the Registration Statement or the Prospectus. The Company has
not distributed any offering material in connection with the
offering or sale of the Shares other than the Registration
Statement, the Prospectus, or any other materials, if any,
permitted by the Act.
(c) The documents incorporated or to be incorporated by
reference in the Registration Statement, the Prospectus or any
amendment or supplement thereto or from which information is so
incorporated by reference, when they became or become effective
or were or are filed with the Commission, as the case may be,
complied or will comply in all material respects with the
requirements of the Act or the Exchange Act, as applicable, the
Exchange Act Rules and Regulations and the Rules and Regulations.
(d) The financial statements and the related notes
thereto, included or incorporated by reference in the
Registration Statement and the Prospectus, present fairly the
financial position of the Company as of the dates indicated and
the results of its operations and the changes in its cash flows
for the periods specified; the foregoing financial statements
have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis, and the
supporting schedules included or incorporated by reference in the
Registration Statement or the Prospectus present fairly the
information required to be stated therein; the summary financial
and statistical data included or incorporated by reference in the
Registration Statement or the Prospectus present fairly the
information shown therein and have been compiled on a basis
consistent with the financial statements presented therein; and
no other financial statements (or schedules) of the Company, any
predecessor of the Company or any other entity or business are
required by the Act to be included in the Registration Statement
or the Prospectus;
(e) since the respective dates as of which information
is given in the Registration Statement and the Prospectus, there
has not been any material adverse change, or any development
involving a prospective material adverse change, in or affecting
the general affairs, business, prospects, management, properties,
financial position, shareholders' equity or results of operations
of the Company or any of its Subsidiaries (as hereinafter
defined), otherwise than as set forth or contemplated in the
Prospectus; and except as set forth or contemplated in the
Prospectus neither the Company nor any of its Subsidiaries has
incurred any liabilities or obligations, direct or contingent, or
entered into any transaction or agreement (whether or not in the
ordinary course of business) material to the Company and its
Subsidiaries as a whole;
(f) the Company has been duly formed and is validly
existing as a real estate investment trust with transferable
shares of beneficial interest under the laws of the State of
Texas, with power and authority to own or lease its properties
and conduct its business as described in the Prospectus, and is
not required to qualify for the transaction of business under the
laws of any other jurisdiction; except for investments in
securities as described in the Registration Statement or
Prospectus, the Company has no equity or other interest in, or
rights to acquire, an equity or other interest in any
corporation, partnership, trust, joint venture or other entity;
the subsidiary entities of the Company identified on Exhibit C
hereto (the "Subsidiaries") are all of the Company's
Subsidiaries, have full power and authority to conduct its
business as described in the Registration Statement and the
Prospectus, have been duly organized and are validly existing as
corporations or limited partnerships, as the case may be, under
the laws of their states of organization, and have been duly
qualified as foreign corporations or limited partnerships, as the
case may be, for the transaction of business and, if applicable,
are in good standing under the laws of each other jurisdiction in
which they own or lease properties, or conduct any business, so
as to require such qualification, other than where the failure to
be so qualified or in good standing would not have a material
adverse effect on the Company and its Subsidiaries taken as a
whole; except for investments in securities as described in the
Registration Statement or Prospectus, the Subsidiaries have no
equity or other interest in, or rights to acquire, an equity or
other interest in any corporation, partnership, trust, joint
venture or other entity; complete and correct copies of the
charter documents and the by-laws, if any, of each of the
Subsidiaries and all amendments thereto have been previously
delivered to you, and no changes therein will have been made
subsequent to the date hereof and prior to the Closing Date; all
of the issued and outstanding capital stock of each Subsidiary
that is a corporation or similar entity has been duly authorized
and validly issued, is fully paid and nonassessable and, except
as otherwise disclosed in the Registration Statement or
Prospectus, is owned by the Company free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
restriction;
(g) the Company has full power and authority to enter
into this Agreement and to issue, offer and sell the Shares as
contemplated by this Agreement; this Agreement has been duly
authorized, executed and delivered by the Company and constitutes
the valid and legally binding obligations of the Company
enforceable in accordance with their terms, except that the
enforceability thereof may be limited by or subject to (i)
bankruptcy, reorganization, insolvency, fraudulent conveyance,
moratorium or other similar laws now or hereafter existing which
affect the rights and remedies of creditors generally and (ii)
equitable principles of general applicability, and except as
rights to indemnity and contribution hereunder may be limited by
applicable law;
(h) The outstanding Common Shares have been, and the
Shares to be issued and sold by the Company upon such issuance
and payment pursuant hereto of the purchase price thereof will
be, duly authorized, validly issued, fully paid and nonassessable
and will not be subject to any preemptive or similar right. The
description of the Common Shares in the Registration Statement
and the Prospectus is, and at the Closing Date will be, in all
material respects, complete and accurate. Except as set forth in
the Prospectus, the Company does not have outstanding, and at the
Closing Date will not have outstanding, any options to purchase,
or any rights or warrants to subscribe for, or any securities or
obligations convertible into, or any contracts or commitments to
issue or sell, any Common Shares, any shares of capital stock of
any subsidiary or any such warrants, convertible securities or
obligations other than pursuant to the Company's dividend
reinvestment plan.
(i) neither the Company nor the Subsidiaries is, nor
with the giving of notice or lapse of time or both would be, in
violation of or in default under, their respective Declaration of
Trust, Articles of Incorporation or By-Laws or any indenture,
mortgage, deed of trust, loan agreement or other agreement or
other instrument or obligation to which the Company or any
Subsidiary is a party or by which they or any of their properties
are bound, except for violations and defaults which individually
and in the aggregate are not material to the Company or to the
holders of the Shares; the issue and sale of the Shares and the
performance by the Company of all of the provisions of its
obligations under this Agreement and the consummation of the
transactions herein and therein contemplated will not conflict
with or result in a breach of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other material agreement or instrument
to which the Company or any Subsidiary is a party or by which the
Company or any Subsidiary is bound or to which any of the
property or assets of the Company or any Subsidiary is subject,
nor will any such action result in any violation of the
provisions of the Declaration of Trust or the By-Laws of the
Company or any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its properties; and no
consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Shares or the
consummation by the Company of the transactions contemplated by
this Agreement, except such consents, approvals, authorizations,
registrations or qualifications as have been obtained under the
Act, and as may be required under state securities or Blue Sky
Laws in connection with the purchase and distribution of the
Shares by the Underwriter;
(j) other than as set forth or contemplated in the
Prospectus, there are no legal or governmental proceedings
pending or, to the knowledge of the Company, threatened to which
the Company or any Subsidiary is or may be a party or to which
any property of the Company or any Subsidiary is or may be the
subject which, if determined adversely to the Company, could
individually or in the aggregate reasonably be expected to have a
material adverse effect on the general affairs, business,
prospects, management, properties, financial position,
shareholders' equity or results of operations of the Company and,
to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others; and there are no contracts or other
documents of a character required to be filed as an exhibit to
the Registration Statement or required to be described in the
Registration Statement or the Prospectus which are not filed or
described as required;
(k) the Company and the Subsidiaries have indefeasible
title to all of the real properties and assets reflected in the
financial statements (or as described in the Registration
Statement) 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 the Registration
Statement) or which are not material in amount and which do not
materially affect the value of such property or materially
interfere with the use made or proposed to be made of such
property by the Company or any of the Subsidiaries; the Company
and the Subsidiaries occupy their leased properties under valid
and binding leases conforming to the description thereof set
forth in the Registration Statement and the Prospectus;
(l) the Company has filed all Federal, State and
foreign income tax returns which have been required to be filed
and have paid all taxes indicated by said returns and all
assessments received by it to the extent that such taxes have
become due and are not being contested in good faith;
(m) the Company and the Subsidiaries hold all material
licenses, certificates and permits from governmental authorities
which are necessary to the conduct of their business;
(n) Deloitte & Touche LLP, who have certified certain
of the financial statements filed with the Commission as part of,
or incorporated by reference in, the Registration Statement, are
independent public accountants as required by the Act;
(o) the Company has never been, is not now, and
immediately after the sale of the Shares under this Agreement
will not be, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended; the Company is
organized, and has operated, operates and will continue to
operate in a manner so as to qualify as a "real estate investment
trust" a ("REIT") under Sections 856 through 860 of the Internal
Revenue Code of 1986, as amended, and the Company's present and
contemplated operations, assets and income continue to meet such
requirements;
(p) the conditions for the use of a registration
statement on Form S-3 set forth in the General Instructions on
Form S-3 have been satisfied and the Company is entitled to use
such form for the transactions contemplated herein;
(q) with respect to the properties of the Company
described in the Prospectus or reflected in the Company's
consolidated financial statements included or incorporated by
reference therein, the Company and its Subsidiaries (i) are in
compliance with any and all applicable foreign, Federal, state
and local laws and regulations relating to the protection of
human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental
Laws"), (ii) have obtained all permits, licenses or other
approvals required of them under applicable Environmental Laws to
conduct their respective businesses 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 obtain required permits, licenses or other
approvals or failure to comply with the terms and conditions of
such permits, licenses or approvals are otherwise disclosed in
the Prospectus or would not, singly or in the aggregate, have a
material adverse effect on the condition (financial or other),
business (affairs or other), prospects, earnings, net worth or
results of operation of the Company and the Subsidiaries taken as
a whole;
(i) none of the Company or the Subsidiaries has at
any time, and, to the knowledge of the Company, no other
party has at any time, handled, buried, stored, retained,
refined, transported, processed, manufactured, generated,
produced, spilled, allowed to seep, leak, escape or ▇▇▇▇▇,
or be pumped, poured, emitted, emptied, discharged,
injected, dumped, transferred or otherwise disposed of or
dealt with, Hazardous Materials (as hereinafter defined) on,
to or from the Properties, other than any such action taken
in compliance with all applicable Environmental Laws or by
tenants in connection with the ordinary use of residential
properties owned by the Company or the Subsidiaries; the
Company does not intend to use the Properties or any
subsequently acquired properties described in the Prospectus
for the purpose of handling, burying, storing, retaining,
refining, transporting, processing, manufacturing,
generating, producing, spilling, seeping, leaking, escaping,
leaching, pumping, pouring, emitting, emptying, discharging,
injecting, dumping, transferring or otherwise disposing of
or dealing with Hazardous Materials other than in compliance
with all applicable Environmental Laws; and
(ii) the Company does not know of any seepage,
leak, escape, leaching, discharge, injection, release,
emission, spill, pumping, pouring, emptying or dumping of
Hazardous Materials into waters on or adjacent to the
Properties or onto lands from which such hazardous or toxic
waste of substances might seep, flow or drain into such
waters; and
(iii) neither the Company nor any of the
Subsidiaries has received notice of, or has knowledge of any
occurrence or circumstance which, with notice or passage of
time or both, would give rise to, any claim under or
pursuant to any Environmental Law pertaining to Hazardous
Material or toxic waste or substances on or originating from
the Properties or arising out of the conduct of any such
party, including, without limitation, pursuant to any
Environmental Law;
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 or any
material as defined by any Federal, state or local
environmental law, ordinance, rule, or regulation including,
without limitation, Environmental Laws, the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980, as amended (42 U.S.C. Section 9601, et seq.)
("CERCLA"), the Hazardous Materials 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
9601, et seq.), and in the regulations adopted and
publications promulgated pursuant to each of the foregoing
or by any Federal, state or local governmental authority
having or claiming jurisdiction over the Properties as
described in the Prospectus.
(r) the Company has complied with all provisions of
Article 6138A of the Texas Civil Statutes;
(s) none of the assets of the Company or the
Subsidiaries constitute, nor will such assets, as of the Closing
Date, constitute, "plan assets" under the Employee Retirement
Income Security Act of 1974, as amended ("ERISA");
(t) 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 Prospectus or other
materials, if any, permitted by the Act;
(u) 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 financial and corporate books and records 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;
(v) all liens, charges, encumbrances, claims or
restrictions on or affecting the Properties which are required to
be disclosed in the Prospectus are disclosed therein; to the
knowledge of the Company, (i) no lessee of any portion of any of
the Properties is in default under any of the leases governing
such properties and there is no event which, but for the passage
of time or the giving of notice, or both, would constitute a
default under any of such leases, except such defaults that would
not have a material adverse effect on the condition (financial or
other), business, prospects, net worth or results of operations
of the Company and the Subsidiaries taken as a whole; (ii) the
intended use and occupancy of each of the Properties complies
with all applicable codes and zoning laws and regulations, if
any, except for such failures to comply which would not
individually or in the aggregate have a material adverse effect
on the condition (financial or other), business prospects, net
worth or results of operations of the Company and the
Subsidiaries taken as a whole; and (iii) there is no pending or,
to the best knowledge of the Company, threatened condemnation,
zoning change, environmental or other 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 such proceedings or actions that would not have a material
adverse effect on the condition (financial or other), business,
prospects, net worth or results of operations of the Company and
the Subsidiaries taken as a whole; and
(w) the Company has and will maintain, property and
casualty insurance in favor of the Company and the Subsidiaries,
as the case may be, with respect to each of the Properties, in an
amount and on such terms as is reasonable and customary for
businesses of the type proposed to be conducted by the Company
and the Subsidiaries; the Company has not received from any
insurance company written notice of any material defects or
deficiencies affecting the insurability of any such Properties.
(x) Subsequent to the respective dates as of which
information is given in the Registration Statement and the
Prospectus and prior to the Closing Date, except as set forth in
or contemplated by the Registration Statement and the Prospectus,
(i) there has not been and will not have been any change in the
capitalization of the Company, or in the business, properties,
business prospects, condition (financial or otherwise) or results
of operations of the Company and its subsidiaries, arising for
any reason whatsoever, other than pursuant to the Company's
dividend reinvestment plan, (ii) neither the Company nor any of
its subsidiaries has incurred nor will it incur any material
liabilities or obligations, direct or contingent, nor has it
entered into nor will it enter into any material transactions
other than pursuant to this Agreement and the transactions
referred to herein and (iii) the Company has not and will not
have paid or declared any dividends or other distributions of any
kind on any class of its capital stock.
4. Agreements of the Company. The Company agrees with the
Underwriter as follows:
(a) The Company will cause the Prospectus Supplement to
be filed as required by Section 3(a) hereof (but only if you have
not reasonably objected thereto by notice to the Company after
having been furnished a copy a reasonable time prior to filing)
and will notify you promptly of such filing. The Company will
not during such period as the Prospectus is required by law to be
delivered in connection with sales of the Shares by the
Underwriter or a dealer, file any amendment or supplement to the
Registration Statement or the Prospectus, unless a copy thereof
shall first have been submitted to the Underwriter within a
reasonable period of time prior to the filing thereof and the
Underwriter shall not have objected thereto in good faith.
(b) The Company will notify the Underwriter promptly,
and will confirm such advice in writing, (1) when any
post-effective amendment to the Registration Statement becomes
effective, (2) of any request by the Commission for amendments or
supplements to the Registration Statement or the Prospectus or
for additional information, (3) of the issuance by the Commission
of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for
that purpose or the threat thereof, (4) of the happening of any
event during the period mentioned in the second sentence of
Section 4(e) that in the judgment of the Company makes any
statement made in the Registration Statement or the Prospectus
untrue or that requires the making of any changes in the
Registration Statement or the Prospectus in order to make the
statements therein, in light of the circumstances in which they
are made, not misleading and (5) of receipt by the Company or any
representative or attorney of the Company of any other
communication from the Commission relating to the Company, the
Registration Statement, or the Prospectus. If at any time the
Commission shall issue any 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 moment.
(c) The Company will furnish to the Underwriter, upon
request and without charge, two signed copies of the Registration
Statement and of any post-effective amendment thereto, including
financial statements and schedules, and all exhibits thereto
(including any document filed under the Exchange Act and deemed
to be incorporated by reference into the Prospectus).
(d) The Company will comply with all the provisions of
any undertakings contained in the Registration Statement.
(e) The Company will deliver to the Underwriter,
without charge, as many copies of the Prospectus containing the
Prospectus Supplement or any amendment or supplement thereto as
the Underwriter may reasonably request. The Company consents to
the use of the Prospectus or any amendment or supplement thereto
by the Underwriter and by all dealers to whom the Shares may be
sold, both in connection with the offering or sale of the Shares
and for any period of time thereafter during which the Prospectus
is required by law to be delivered in connection therewith. If
during such period of time any event shall occur which in the
judgment of the Company or counsel to the Underwriter should be
set forth in the Prospectus in order to make any statement
therein, in the light of the circumstances under which it was
made, not misleading, or if it is necessary to supplement or
amend the Prospectus to comply with law, the Company will
forthwith prepare and duly file with the Commission an
appropriate supplement or amendment thereto, and will deliver to
the Underwriter, without charge, such number of copies of such
supplement or amendment to the Prospectus as the Underwriter may
reasonably request. The Company shall not file any document
under the Exchange Act before the termination of the offering of
the Shares by the Underwriter if such document would be deemed to
be incorporated by reference into the Prospectus which is not
approved by the Underwriter after reasonable notice thereof.
(f) Prior to any public offering of the Shares the
Company will cooperate with the Underwriter and counsel to the
Underwriter in connection with the registration or qualification
of the Shares for offer and sale under the securities or Blue Sky
laws of such jurisdictions as the Underwriter may request
including, without limitation, other jurisdictions outside of the
United States; 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 general service of process in any jurisdiction where it is
not now so subject.
(g) During the period of five years commencing on the
date hereof, the Company will furnish to the Underwriter of such
financial statements and other periodic and special reports as
the Company may from time to time distribute generally to the
holders of any class of its capital stock, and will furnish to
the Underwriter a copy of each annual or other report it shall be
required to file with the Commission.
(h) The Company will make generally available to
holders of its securities as soon as may be practicable but in no
event later than the last day of the fifteenth full calendar
month following the end of the Company's current fiscal quarter,
an earnings statement (which need not be audited but shall be in
reasonable detail) for a period of 12 months beginning after the
date upon which the Prospectus Supplement is filed pursuant to
Rule 424 under the Act, and satisfying the provisions of Section
11(a) of the Act (including Rule 158 of the Rules and
Regulations).
(i) Whether or not the transactions contemplated by
this Agreement are consummated or this Agreement is terminated,
the Company will pay, or reimburse if paid by the Underwriter,
all fees, costs and expenses incident to the performance of the
obligations of the Company under this Agreement, including but
not limited to fees, costs and expenses of or relating to (1) the
preparation, printing and filing of the Registration Statement
and exhibits to it, the Prospectus and any amendment or
supplement to the Registration Statement or the Prospectus, (2)
the preparation and delivery of certificates representing the
Shares, (3) the printing of this Agreement and any Dealer
Agreements, (4) furnishing (including costs of shipping and
mailing) such copies of the Registration Statement, the
Prospectus and any Preliminary Prospectus, and all amendments and
supplements thereto, as may be requested for use in connection
with the offering and sale of the Shares by the Underwriter or by
dealers to whom Shares may be sold, (5) the listing of the Shares
on the New York Stock Exchange, (6) filings required to be made
by or on behalf of the Company or the Underwriter, including
without limitation filings to be made by the Underwriter with the
NASD, and the fees, disbursements and other charges of the
Underwriter's counsel for the Underwriter in connection therewith
and filings to be made by the Company with the Commission, and
the fees, disbursements and other charges of counsel for the
Company in connection therewith, (7) the registration or
qualification of the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions designated
pursuant to Section 4(f), including the fees, disbursements and
other charges of counsel to the Underwriter in connection
therewith, and the preparation and printing of preliminary,
supplemental and final Blue Sky memoranda, (8) counsel to the
Company and any surveyors, engineers, appraisers, photographers,
accountants and other professionals engaged by or on behalf of
the Company, (9) the transfer agent and registrar for the Shares,
and (10) preparation of slides, overheads and other presentation
material to be used in any "road show" or other presentation to
potential investors and the hotel, travel and other expenses of
the Company's employees in connection with any such "road show"
or presentation- provided, however, that with respect to any
fees, disbursements and other charges of counsel for the
Underwriter in connection with (1) filings made with the NASD and
(11) the registration and qualification of the Shares under Blue
Sky laws and the preparation of Blue Sky memorandum, the Company
shall not be responsible for counsel fees, disbursements and
other charges in excess of $15,000. The filing fee paid to the
NASD shall not be considered to be "fees, disbursements or other
charges" for the purposes of this Section 4(i) and shall be paid
by the Company.
(j) If this Agreement shall be terminated by the
Company pursuant to any of the provisions hereof (otherwise than
pursuant to Section 8 hereof) or if for any reason the Company
shall be unable to perform its obligations hereunder, the Company
will reimburse the Underwriter for all out-of-pocket expenses
(including the fees, disbursements and other charges of counsel
to the Underwriter) reasonably incurred by it in connection
herewith.
(k) The Company will not at any time, directly or
indirectly, take any action intended, or which might reasonably
be expected, to cause or result in, or which will constitute,
stabilization of the price of the Common Shares to facilitate the
sale or resale of any of the Shares.
(l) The Company will apply the net proceeds from the
offering and sale of the Shares to be sold by the Company in
the manner set forth in the Prospectus under "Use of
Proceeds."
(m) The Company will continue to elect to qualify as a
"real estate investment trust" under the Code, and will use its
best efforts to continue to meet the requirements to qualify as a
"real estate investment trust."
5. Conditions of the Obligations of PaineWebber
Incorporated. In addition to the execution and delivery of the
Price Determination Agreement, the obligations of the Underwriter
hereunder are subject to the following conditions:
(a) The Prospectus shall have been filed as required by
Section 3(a) and (i) no stop order suspending the effectiveness
of the Registration Statement shall have been issued and no
proceedings for that purpose shall be pending or threatened by
the Commission, (ii) no order suspending the effectiveness of the
Registration Statement or the qualification or registration of
the Shares under the securities or Blue Sky laws of any
jurisdiction shall be in effect and no proceeding for such
purpose shall be pending before or threatened or contemplated by
the Commission or the authorities of any such jurisdiction, (iii)
any request for additional information on the part of the staff
of the Commission or any such authorities shall have been
complied with to the satisfaction of the staff of the Commission
or such authorities and (iv) after the date hereof no amendment
or supplement to the Registration Statement or the Prospectus
shall have been filed unless a copy thereof was first submitted
to the Underwriter and the Underwriter did not object thereto in
good faith, and the Underwriter shall have received certificates,
dated the Closing Date and signed by the Chief Executive Officer
or the Chairman of the Board of Trustees of the Company and the
Chief Financial Officer of the Company (who may, as to
proceedings threatened, rely upon the best of their information
and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information
is given in the Registration Statement and the Prospectus, (i)
there shall not have been a material adverse change in the
general affairs, business, business prospects, properties,
management, condition (financial or otherwise) or results of
operations of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course
of business, in each case other than as set forth in or
contemplated by the Registration Statement and the Prospectus and
(ii) neither the Company nor any of its subsidiaries shall have
sustained any material loss or interference with its business or
properties from fire, explosion, flood or other casualty, whether
or not covered by insurance, or from any labor dispute or any
court or legislative or other governmental action, order or
decree, which is not set forth in the Registration Statement and
the Prospectus, if in the judgment of the Underwriter any such
development makes it impracticable or inadvisable to consummate
the sale and delivery of the Shares by the Underwriter and at the
public offering price.
(c) Since the respective dates as of which information
is given in the Registration Statement and the Prospectus, there
shall have been no litigation or other proceeding instituted
against the Company or any of its subsidiaries or any of their
respective officers or directors in their capacities as such,
before or by any Federal, state or local court, commission,
regulatory body, administrative agency or other governmental
body, domestic or foreign, in which litigation or proceeding an
unfavorable ruling, decision or finding would materially and
adversely affect the business, properties, business prospects,
condition (financial or otherwise) or results of operations of
the Company and its subsidiaries taken as a whole.
(d) Each of the representations and warranties of
the Company contained herein shall be true and correct in all
material respects at the Closing Date as if made at the Closing
Date and all covenants and agreements contained herein to be
performed on the part of the Company and all conditions contained
herein to be fulfilled or complied with by the Company at or
prior to the Closing Date shall have been duly performed,
fulfilled or complied with.
(e) The Underwriter shall have received one or more
opinions, dated the Closing Date and satisfactory in form and
substance to the Underwriter's counsel from Liddell, Sapp,
Zivley, Hill & ▇▇▇▇▇▇, L.L.P., counsel to the Company, (i) to the
effect set forth in Exhibit B and (ii) to the further effect
that: (A) the Company met the requirements for qualification and
taxation as a real estate investment trust ("REIT") for the
taxable years 1993 through 1995; (B) the Company's diversity of
equity ownership and proposed method of operation should allow it
to qualify as a REIT for 1996; and (C) the discussion contained
under the caption "Certain Federal Income Tax Considerations" in
the Prospectus forming a part of the Registration Statement,
accurately reflects existing law and fairly addresses the
material federal income tax issues described therein.
In rendering such opinions, Liddell, Sapp, Zivley, Hill &
▇▇▇▇▇▇, L.L.P. may rely as to matters of fact, to the extent they
deem proper, on certificates of officers of the Company and
public officials so long as such counsel states that no facts
have come to the attention of such counsel which lead them to
believe that they are not justified in relying on such
certificates. In addition, Liddell, Sapp, Zivley, Hill & ▇▇▇▇▇▇,
L.L.P. may state that their opinions are based upon the
procedures and assumptions set forth in such opinion letter and
that it is limited to the tax matters specifically covered
thereby and that they have not addressed any other tax
consequences.
(f) The Underwriter shall have received an opinion,
dated the Closing Date from ▇▇▇▇▇▇▇, Procter & ▇▇▇▇ LLP, the
Underwriter's counsel, with respect to the Registration
Statement, the Prospectus and this Agreement, which opinion shall
be satisfactory in all respects to the Underwriter.
(g) Deloitte & Touche LLP shall have furnished to the
Underwriter a letter, dated the date of its delivery, addressed
to the Underwriter and in form and substance satisfactory to the
Underwriter, confirming that they are independent accountants
with respect to the Company as required by the Act and the Rules
and Regulations and with respect to the financial and other
statistical and numerical information contained in the
Registration Statement or incorporated by reference therein.
(h) At the Closing Date there shall be furnished to the
Underwriter an accurate certificate, dated the date of its
delivery, signed by each of the Chief Executive Officer and the
Chief Financial Officer of the Company, in form and substance
satisfactory to the Underwriter, to the effect that:
(i) Each signer of such certificate has carefully
examined the Registration Statement and the Prospectus
(including any documents filed under the Exchange Act and
deemed to be incorporated by reference into the Prospectus)
and (A) as of the date of such certificate, such documents
are true and correct in all material respects and do not
omit to state a material fact required to be stated therein
or necessary in order to make the statements therein not
untrue or misleading and (B) no event has occurred as a
result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein not
untrue or misleading in any material respect and there has
been no document required to be filed under the Exchange Act
and the Exchange Act Rules and Regulations that upon such
filing would be deemed to be incorporated by reference into
the Prospectus that has not been so filed.
(ii) Each of the representations and warranties of
the Company contained in this Agreement were, when
originally made, and are, at the time such certificate is
delivered, true and correct in all material respects.
(iii) Each of the covenants required to be
performed by the Company herein on or prior to the delivery
of such certificate has been duly, timely and fully
performed and each condition herein required to be complied
with by the Company on or prior to the date of such
certificate has been duly, timely and fully complied with.
(i) The Shares. shall be qualified for sale in such
states as the Underwriter may reasonably request, each such
qualification shall be in effect and not subject to any stop
order or other proceeding on the Closing Date.
(j) Prior to the Closing Date, the Shares shall have
been duly authorized for listing by the New York Stock Exchange
upon official notice of issuance.
(k) The Company shall have furnished to the Underwriter
such certificates, in addition to those specifically mentioned
herein, as the Underwriter may have reasonably requested as to
the accuracy and completeness at the Closing Date of any
statement in the Registration Statement or the Prospectus or any
documents filed under the Exchange Act and deemed to be
incorporated by reference into the Prospectus, as to the accuracy
at the Closing Date of the representations and warranties of the
Company herein as to the performance by the Company of its
obligations hereunder or as to the fulfillment of the conditions
concurrent and precedent to the obligations hereunder of the
Underwriter.
6. Indemnification.
(a) The Company will indemnify and hold harmless the
Underwriter, the directors, officers, employees and agents of the
Underwriter, 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 (and actions in
respect thereof) (including any and all 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 they, or any of them, may become
subject under the Act the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar
as such losses, claims, liabilities, expenses or damages arise
out of or are based on a breach of any representation, warranty,
agreement or covenant made by the Company in this Agreement or
based upon an untrue statement or alleged untrue statement of a
material fact contained in 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 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 not misleading, provided that the
Company will not be liable to the extent that such loss, claim,
liability, expense or damage arises from the sale of the Shares
in the public offering to any person by the Underwriter 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 the
Registration Statement or the Prospectus. The Company
acknowledges that the statements set forth under the heading
"Underwriting" in the Prospectus constitute the only information
relating to the Underwriter furnished in writing to the Company
by the Underwriter expressly for inclusion in the Registration
Statement or the Prospectus. 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, 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 trustee of the Company, each officer of the
Company and employees and agents of the Company to the same
extent as the foregoing indemnity from the Company to the
Underwriter, but only insofar as losses, claims, liabilities,
expenses or damages (or actions in respect thereof) arise out of
or are based on any untrue statement or omission or alleged
untrue statement or omission of a material fact contained in any
part of the Registration Statement when such part became
effective, or in the Prospectus or any amendment or supplement
thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or
omission or alleged omission was made therein in reliance on and
in conformity with information relating to the Underwriter
furnished in writing to the Company by the Underwriter expressly
for use in the Registration Statement or the Prospectus. This
indemnity will be in addition to any liability that each
Underwriter might otherwise have. The Company acknowledges that
the statements set forth under the heading "Underwriting" in the
Registration Statement, and the Prospectus constitute the only
information relating to the Underwriter furnished in writing to
the Company by the Underwriter expressly for inclusion in the
Registration Statement or the Prospectus.
(c) Any party that proposes to assert the right to be
indemnified under this Section 6 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 6, 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 6 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 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 (1) the employment
of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) 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, (3) 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 (4) 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 separate 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).
(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 6 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, but after
deducting any contribution received by the Company from persons
other than the Underwriter, such as persons who control the
Company within the meaning of the Act, officers of the Company
who signed the Registration Statement and trustees of the
Company, who also may be liable for contribution) 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 in the table on the cover
page of the Prospectus. If, but only if, the allocation provided
by the foregoing 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 that it would not be just and equitable if
contributions pursuant to this Section 6(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 6(d)
shall be deemed to include, for purpose of this Section 6(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
6(d), the Underwriter shall not be required to contribute any
amount in excess of the underwriting discounts received by it,
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 6(d),
any person who controls a party to this Agreement within the
meaning of 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 6(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 any other obligation it or they may have under this
Section 6(d). No party will be liable for contribution with
respect to any action or claim settled without its written
consent (which consent will not be unreasonably withheld).
7. Representations and Agreements to Survive Delivery.
All representations, warranties, agreements and covenants of the
Company herein or in certificates delivered pursuant hereto, and
the agreements of the Underwriter contained in Section 6 hereof,
shall remain operative and in full force and effect regardless of
any investigation made by or on behalf of the Underwriter or any
controlling persons, or the Company or any of its officers,
trustees, or any controlling persons, and shall survive (i)
termination of this Agreement and (ii) delivery of and payment
for the Shares hereunder.
8. Termination. The obligations of the Underwriter under
this Agreement may be terminated at any time on or prior to the
Closing Date by notice to the Company from the Underwriter,
without liability on the part of the Underwriter to the Company,
if, prior to delivery and payment for the Shares, in the sole
judgment of the Underwriter, (i) trading in any of the equity
securities of the Company shall have been suspended by the
Commission, by an exchange that lists the Shares or by the
National Association of Securities Dealers Automated Quotation
National Market System, (ii) trading in securities generally on
the New York Stock Exchange shall have been suspended or limited
or minimum or maximum prices shall have been generally
established on such exchange, or additional material governmental
restrictions, not in force on the date of this Agreement, shall
have been imposed upon trading in securities generally by such
exchange or by order of the Commission or any court or other
governmental authority, (iii) a general banking moratorium shall
have been declared by either Federal or New York State
authorities or (iv) any material adverse change in the financial
or securities markets in the United States or in political,
financial or economic conditions in the United States or any
outbreak or material escalation of hostilities or declaration by
the United States of a national emergency or war or other
calamity or crisis shall have occurred the effect of any of which
is such as to make it, in the sole judgment of the Underwriter,
impracticable or inadvisable to market the Shares on the terms
and in the manner contemplated by the Prospectus.
9. Miscellaneous. Notice given pursuant to any of the
provisions of this Agreement shall be in writing and, unless
otherwise specified, shall be mailed or delivered (a) if to the
Company, at the office of the Company, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, Esq., Senior Vice President-General Counsel and
Secretary, or (b) if to the Underwriter, to the offices of
PaineWebber Incorporated, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Real Estate Department. Any
such notice shall be effective only upon receipt. Any notice
under Section 8 hereof may be made by telex or telephone, but if
so made shall be subsequently confirmed in writing.
This Agreement has been and is made solely for the benefit
of the Underwriter and the Company and of the controlling
persons, directors, trustees, and officers referred to in Section
6, and their respective successors and assigns, and no other
person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" as used in this
Agreement shall not include a purchaser, as such purchaser, of
Shares from the Underwriter.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
This Agreement may be signed in two or more counterparts
with the same effect as if the signatures thereto and hereto were
upon the same instrument.
In case any provision in this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
The Company and the Underwriter each hereby irrevocably
waive any right they may have to a trial by jury in respect of
any claim based upon or arising out of this Agreement or the
transactions contemplated hereby.
_____________________________
Please confirm that the foregoing correctly sets forth the
agreement among the Company and the Underwriter.
Very truly yours,
CAMDEN PROPERTY TRUST
By: /s/ G. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Sr. Vice President and
Chief Executive Officer
Confirmed as of the date first above mentioned:
PAINEWEBBER INCORPORATED
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Managing Director
PAGE
EXHIBIT A
CAMDEN PROPERTY TRUST
Price Determination Agreement
October __, 1996
PAINEWEBBER INCORPORATED
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Reference is made to the Underwriting Agreement, dated
concurrently herewith (the "UNDERWRITING AGREEMENT"), between
Camden Property Trust, a Texas real estate investment trust (the
"COMPANY"), and PaineWebber Incorporated ("PAINEWEBBER"). The
Underwriting Agreement provides for the purchase by PaineWebber
from the Company, subject to the terms and conditions set forth
therein, of an aggregate of 260,000 shares (the "SHARES") of the
Company's common shares of beneficial interest, par value $.01
per share. This Agreement is the Price Determination Agreement
referred to in the Underwriting Agreement.
Pursuant to Section 1 of the Underwriting Agreement, the
undersigned agree with PaineWebber as follows:
1. The public offering price per share for the Shares shall
be $ _______.
2. The purchase price per share for the Shares to be paid
by PaineWebber shall be $_____ representing an amount equal to
the public offering price set forth above, less $____ per share.
The Company represents and warrants to PaineWebber that the
representations and warranties of the Company set forth in
Section 3 of the Underwriting Agreement are accurate as though
expressly made at and as of the date hereof.
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
If the foregoing is in accordance with your understanding of
the agreement among PaineWebber and the Company, please sign and
return to the Company a counterpart hereof, whereupon this
instrument along with all counterparts and together with the
Underwriting Agreement shall be a binding agreement between
PaineWebber and the Company in accordance with its terms and the
terms of the Underwriting Agreement.
Very truly yours,
CAMDEN PROPERTY TRUST
By:
Title:
Confirmed as of the date first above mentioned:
PAINEWEBBER INCORPORATED
By:
Title:
PAGE
EXHIBIT B
October 16, 1996
PaineWebber Incorporated
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We have acted as counsel to Camden Property Trust, a Texas
real estate investment trust (the "Company"), in connection with
the issuance and sale by the Company of 260,000 common shares of
beneficial interest (the "Offering"), par value $0.01 per share
(the "Common Shares") in connection with that certain
Underwriting Agreement dated as of October 10, 1996 (the
"Underwriting Agreement"), among PaineWebber Incorporated
("PaineWebber") and the Company. This opinion is being furnished
to you pursuant to Section 5(e) of the Underwriting Agreement.
Capitalized terms used and not otherwise defined herein shall
have the meanings set forth in the Underwriting Agreement.
As such counsel, we have examined (i) the Registration
Statement on Form S-3 (File No. 33-84536) relating to certain
securities (the "Shelf Securities") to be issued from time to
time by the Company, filed with the Securities and Exchange
Commission (the "Commission") on October 3, 1994 under the
Securities Act of 1933, as amended (the "1933 Act"), and
Post-Effective Amendment No. 1 thereto, filed with the Commission
on March 30, 1995 (such Registration Statement, as so amended,
including any and all documents incorporated therein by
reference, being hereinafter referred to as the "Registration
Statement"); (ii) the Prospectus dated January 30, 1996, covering
the Shelf Securities, as supplemented by the Prospectus
Supplement dated October 11, 1996, relating to the Offering (such
Prospectus, as so supplemented, including any and all documents
incorporated therein by reference, being hereinafter referred to
as the "Prospectus"); (iii) a copy of the Underwriting Agreement;
(iv) a copy of that certain Price Determination Agreement dated
as of October 10, 1996, among PaineWebber and the Company (the
"Pricing Agreement"); (v) the Amended and Restated Declaration of
Trust of the Company and all amendments thereto, to date (the
Amended and Restated Declaration of Trust, as so amended, being
hereinafter referred to as the "Declaration of Trust"); (vi) the
Company's Bylaws, as amended to date (hereinafter referred to as
the "Bylaws"); (vii) certain resolutions adopted by the Board of
Trust Managers of the Company relating to, among other things,
the issuance and sale of Common Shares pursuant to the Offering;
and such other documents as we have deemed necessary to express
an opinion on the matters set forth below.
In addition, we have read and examined originals or copies,
certified or otherwise identified to our satisfaction, of such
records of the Company and such agreements, oral statements or
written certificates of public officials, certificates of
officers or representatives of the Company and others, and such
other documents, certificates and records as we have deemed
necessary or appropriate as a basis for the opinions set forth
herein.
In our examination, we have assumed (i) the due
authorization, execution and delivery of the documents by all
parties thereto (other than the Company), and that all such
instruments constitute legal, valid and binding obligations of
such parties, enforceable against such parties in accordance with
their terms, and that such parties (other than the Company) have
all necessary power and authority to enter into and perform the
transactions contemplated thereby, and (ii) the genuineness of
all signatures (other than those of the officers of the Company),
the authenticity of all documents submitted to us as originals,
the conformity to authentic original documents of all documents
submitted to us as photocopies, telecopies or facsimiles and the
authenticity of the originals of such latter documents. As to
matters of fact material to this opinion, we have relied upon the
oral or written statements, certificates and representations of
officers and other representatives of the Company and others.
Based upon the foregoing, we are of the opinion that as of
the date hereof:
1. The Company has been duly formed and is validly existing
as a real estate investment trust under the laws of the State of
Texas. The Company has full corporate power and authority to
own, lease and operate its properties, to conduct the business in
which it is engaged or proposes to engage as described in the
Registration Statement and Prospectus and to enter into and
perform its obligations under the Underwriting Agreement and the
Pricing Agreement.
2. Each of the Subsidiaries has been duly organized and is
validly existing as a corporation in good standing under the laws
of its state of organization or formation, with power and
authority to own its properties and conduct its business as
described in the Registration Statement and Prospectus. Except
as described in the Registration Statement or the Prospectus, the
Company owns no capital stock or other beneficial interest in any
corporation, partnership, trust, joint venture or other business
entity.
3. Each of the Subsidiaries is duly qualified or registered
as a foreign corporation to transact business and is in good
standing under the laws of each other jurisdiction in which it
owns or leases properties, or conducts any business, so as to
require such qualification, other than where the failure to be so
qualified or in good standing would not have a material adverse
effect on the Company.
4. The authorized capital stock of the Company is as set
forth in the Registration Statement and Prospectus, and all of
the issued and outstanding Common Shares have been duly
authorized and are validly issued, fully paid and nonassessable.
The Common Shares were duly authorized for issuance and sale to
PaineWebber pursuant to the Underwriting Agreement, and, when
issued and delivered by the Company pursuant to the Underwriting
Agreement against payment of the consideration set forth in the
Pricing Agreement, will be validly issued, fully paid and
nonassessable.
5. The terms of the Common Shares conform to all statements
and descriptions related thereto contained in the Prospectus.
The shareholders of the Company have no preemptive or, to our
best knowledge, similar rights with respect to the Common Shares
and, except as disclosed in the Registration Statement and
Prospectus, to our knowledge there are no restrictions upon the
voting or transfer of any Common Shares pursuant to the Company's
Declaration of Trust or Bylaws or any agreement or other
instrument.
6. The Underwriting Agreement and the Pricing Agreement
have been duly authorized, executed and delivered by the Company
and each is a valid and binding agreement of the Company, except
as rights to indemnity and contribution thereunder may be limited
by applicable law.
7. To the best of our knowledge, neither the Company nor
the Subsidiaries are, nor with the giving of notice or lapse of
time or both would be, in violation of or in default under, their
respective Declaration of Trust, Articles of Incorporation or
ByLaws or any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument known to us to which the Company
or any of the Subsidiaries is a party or by which they or any of
their respective properties are bound, except for violations and
defaults which individually and in the aggregate are not material
to the Company; to the best of our knowledge, the issuance and
sale of the Common Shares pursuant to the Offering and the
performance by the Company of its obligations under the
Underwriting Agreement and the Pricing Agreement and the
consummation of the transactions therein contemplated will not
conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other material
agreement or instrument known to us to which the Company or any
Subsidiary is a party or by which the Company or any Subsidiary
is bound or to which any of the property or assets of the Company
or any Subsidiary is subject, nor will any such action result in
any violation of the provisions of the Declaration of Trust or
the ByLaws of the Company or any applicable law or statute or any
order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its
properties.
8. To our knowledge, there are no contracts, agreements or
understandings between the Company and any person granting such
person the right to require the Company to file a registration
statement under the 1933 Act with respect to any securities of
the Company owned by such person or to require the Company to
register such securities pursuant to the Registration Statement.
9. The Registration Statement has become effective under
the 1933 Act; any required filing of the Prospectus under Rule
424 under the 1933 Act has been made; to our best knowledge no
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has
been instituted or threatened by the Commission.
10. We (A) are of the opinion that each document
incorporated by reference in the Registration Statement and the
Prospectus (except for the financial statements included therein
as to which we express no opinion) complied as to form in all
material respects with the Securities Exchange Act of 1934, as
amended (the "1934 Act"), when filed with the Commission, (B)
believe that (except for the financial statements included
therein as to which we express no belief) each part of the
Registration Statement (including the documents incorporated by
reference therein) filed with the Commission pursuant to the 1933
Act relating to the Common Shares, when such part became
effective, 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, (C) are
of the opinion that the Registration Statement and the Prospectus
and any amendments and supplements thereto (except for the
financial statements included therein as to which we express no
opinion) comply as to form in all material respects with the
requirements of the 1933 Act and (D) believe that (except for the
financial statements included therein as to which we express no
belief) the Registration Statement and the Prospectus, on the
date of the Underwriting Agreement, did not contain any 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, and that the Prospectus does not contain
any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
11. To our knowledge, no authorization, approval, consent or
order of, or filing with, any court or governmental authority or
agency is required for the consummation of the transactions
contemplated by the Underwriting Agreement or the Pricing
Agreement or in connection with the issuance and sale of the
Common Shares by the Company, except such as have been obtained
under the 1933 Act, the 1934 Act, and such as may be required
under state securities laws or New York real estate syndication
law, or the bylaws of the National Association of Securities
Dealers, Inc., in connection with the purchase and distribution
of the Common Shares by PaineWebber.
12. Neither the Company nor any of the Subsidiaries is an
investment company within the meaning of the Investment Company
Act of 1940, as amended.
13. The descriptions in the Registration Statement and the
Prospectus of statutes, legal and governmental proceedings,
contracts and other documents are accurate in all material
respects and fairly present the information required under the
1933 Act and the regulations promulgated thereunder to be shown
therein; and we do not know of any statutes or legal or
governmental proceedings required under the 1933 Act and the
regulations promulgated thereunder to be described in the
Prospectus that are not described as required, or of any
contracts or documents of a character required under the 1933 Act
and the regulations promulgated thereunder to be described in the
Registration Statement or Prospectus or to be filed as exhibits
to the Registration Statement that are not described and filed as
required.
14. The Common Shares have been duly authorized for listing
by the New York Stock Exchange.
15. The information in the Prospectus under the headings
"Description of Common Shares," "Description of Preferred
Shares," "Description of Securities Warrants," and "Description
of Debt Securities" to the extent that it constitutes matters of
law or legal conclusions (other than with respect to the laws of
any state other than the State of Texas), has been reviewed by us
and is correct in all material respects.
The opinions set forth herein are subject to the
qualification that we are admitted to practice law in the State
of Texas and we express no opinion as to the laws other than the
laws of the State of Texas and the federal laws of the United
States of America, in each case as now in effect, which have been
published and are generally available in a format that makes
legal research reasonably feasible and we disclaim any
responsibility to inform you of any changes. No opinion is
expressed as to any matter that may be governed by the laws of
any other jurisdiction. Furthermore, with respect to the matters
covered in paragraph 12 above, our opinion and belief is based,
with your permission, upon our participation in the preparation
of the Registration Statement and Prospectus (other than the
documents incorporated by reference therein) and review and
discussion of the contents thereof (including the documents
incorporated by reference therein) but is without independent
check or verification.
This opinion is furnished to you solely for your benefit in
connection with the Offering and is not to be relied upon,
quoted, circulated, published or otherwise referred to for any
other purpose, in whole or in part, without our express prior
written consent; provided, however, that for purposes of
rendering their opinion to PaineWebber pursuant to Section 5(f)
of the Underwriting Agreement, ▇▇▇▇▇▇▇, Procter & ▇▇▇▇ LLP may
rely on the opinions set forth in numbered paragraphs 1 and 4 as
far as they relate to the laws of the State of Texas.
Very truly yours,
/s/ LIDDELL, SAPP, ZIVLEY,
HILL & ▇▇▇▇▇▇, L.L.P.
EXHIBIT C
Subsidiaries
Apartment Connection, Inc.
Camden Acquisition, Inc.
Camden Bay Crest, Inc
Camden Building, Inc.
Camden Colorado, Inc
Camden Communications One, Inc.
Camden Development, Inc.
▇▇▇▇▇▇ ▇▇▇▇ Lakes, Inc.
Camden ▇▇▇▇▇ Place, Inc.
Camden Housing, Inc.
Camden Roseland Place, Inc.
Camden Wilshire Place, Inc.
CPT Arizona, Inc.
CPT Texas, Inc.