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SUMMIT PROPERTIES INC.
(a Maryland corporation)
Common Stock and Preferred Stock
UNDERWRITING AGREEMENT
August 1, 1996
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
World Financial Center
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Summit Properties Inc., a Maryland corporation (the "Company"),
proposes to issue and sell shares of Common Stock, $.01 par value (the "Common
Stock") or shares of Preferred Stock, $.01 par value (the "Preferred Shares"),
from time to time, in one or more offerings on terms to be determined at the
time of sale. Each series of Preferred Shares may vary as to the specific
number of shares, title, stated value, liquidation preference, issuance price,
ranking, dividend rate or rates (or method of calculation), dividend payment
dates, redemption provisions, sinking fund requirements, conversion or exchange
provisions and any other variable terms as set forth in the applicable articles
supplementary (each, the "Articles Supplementary") relating to such Preferred
Shares. As used herein, "Securities" shall mean the Common Stock and the
Preferred Shares, as applicable. As used herein, "you" and "your", unless the
context otherwise requires, shall mean the parties to whom this underwriting
agreement (this "Agreement") is addressed together with the other parties, if
any, identified in the applicable Terms Agreement (as defined herein) as
additional co-managers with respect to Underwritten Securities (as hereinafter
defined) purchased pursuant thereto.
The Company is the sole general partner, and the principal limited
partner, of Summit Properties Partnership, L.P., a Delaware limited partnership
(the "Operating Partnership"). The Company's business of owning and managing
multifamily apartment
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communities is conducted principally through the Operating Partnership. The
Company's third party management and certain construction and other business
are conducted through its subsidiaries, Summit Management Company, a Maryland
corporation (the "Management Company") and Summit Apartment Builders, Inc., a
Florida corporation (the "Building Company"). For the purposes of this
Agreement, each of the Operating Partnership, the Management Company, and the
Building Company is deemed a "Subsidiary" of the Company.
It is understood that the net proceeds of an offering of securities to
which this Agreement relates will be contributed to the Operating Partnership
in exchange for interests in the Operating Partnership ("Units").
Whenever the Company determines to make an offering of Securities
through you or through an underwriting syndicate managed by you, the Company
will enter into an agreement (the "Terms Agreement") providing for the sale of
such Securities (the "Underwritten Securities") to, and the purchase and
offering thereof by, you and such other underwriters, if any, selected by you
as have authorized you to enter into such Terms Agreement on their behalf (the
"Underwriters", which term shall include you whether acting alone in the sale
of the Underwritten Securities or as a member of an underwriting syndicate and
any Underwriter substituted pursuant to Section 10 hereof). The Terms
Agreement relating to the offering of Underwritten Securities shall specify the
number of Underwritten Securities of each class or series to be initially
issued (the "Initial Underwritten Securities"), the names of the Underwriters
participating in such offering (subject to substitution as provided in Section
10 hereof), the number of Initial Underwritten Securities which each such
Underwriter severally agrees to purchase, the names of such of you or such
other Underwriters acting as co-managers, if any, in connection with such
offering, the price at which the Initial Underwritten Securities are to be
purchased by the Underwriters from the Company, the initial public offering
price, if any, the time, date and place of delivery and payment, any delayed
delivery arrangements and any other variable terms of the Initial Underwritten
Securities (including but not limited to, current ratings, designations,
liquidation preferences, conversion or exchange provisions, redemption
provisions and sinking fund requirements (in the case of Preferred Shares
only)). In addition, each Terms Agreement shall specify whether the Company
has agreed to grant to the Underwriters an option to purchase additional
Underwritten Securities to cover over-allotments, if any, and the number of
Underwritten Securities subject to such option (the "Option Securities"). As
used herein, the term "Underwritten Securities" shall include the Initial
Underwritten Securities and all or any portion of the Option Securities agreed
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to be purchased by the Underwriters as provided herein, if any. The Terms
Agreement, which shall be substantially in the form of Exhibit A hereto, may
take the form of an exchange of any standard form of written telecommunication
between you and the Company. Each offering of Underwritten Securities through
you or through an underwriting syndicate managed by you will be governed by
this Agreement, as supplemented by the applicable Terms Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33-90706) for the
registration of the Securities under the Securities Act of 1933, as amended
(the "1933 Act"), and the offering thereof from time to time in accordance with
Rule 415 of the rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations"), and the Company has filed such amendments thereto as
may have been required prior to the execution of the applicable Terms
Agreement. Such registration statement (as amended, if applicable) has been
declared effective by the Commission. Such registration statement and the
prospectus constituting a part thereof, in each case as supplemented by a
prospectus supplement relating to the offering of Underwritten Securities (the
"Prospectus Supplement"), including in each case all documents incorporated
therein by reference and the information, if any, deemed to be a part thereof
pursuant to Rule 430A(b) or Rule 434 of the 1933 Act Regulations as from time
to time amended or supplemented pursuant to the 1933 Act, the Securities
Exchange Act of 1934, as amended (the "1934 Act"), or otherwise, are
collectively referred to herein as the "Registration Statement" and the
"Prospectus", respectively; provided, however, that a Prospectus Supplement
shall be deemed to have supplemented the Prospectus only with respect to the
offering of Underwritten Securities to which it relates. All references in
this Agreement to financial statements and schedules and other information
which is "contained," "included" or "stated" in the Registration Statement or
the Prospectus (and all other references of like import) shall be deemed to
mean and include all such financial statements and schedules and other
information which is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be; and all
references in this Agreement to amendments or supplements to the Registration
Statement or the Prospectus shall be deemed to mean and include the filing of
any document under the 1934 Act which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be.
If the Company elects to rely on Rule 434 under the 1933 Act Regulations, all
references to the Prospectus shall be deemed to include, without limitation,
the form of prospectus and the abbreviated term sheet, taken together, provided
to the Underwriters by the
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Company in reliance on Rule 434 under the 1933 Act (the "Rule 434 Prospectus").
If the Company files a registration statement to register a portion of the
Securities and relies on Rule 462(b) for such registration statement to become
effective upon filing with the Commission (the "Rule 462 Registration
Statement"), then any reference to "Registration Statement" herein shall be
deemed to be to both the registration statement referred to above (No.
33-90706) and the Rule 462 Registration Statement, as each such registration
statement may be amended pursuant to the 1933 Act.
Section 1. Representations and Warranties.
(a) The Company and the Operating Partnership each jointly and
severally represents and warrants to you, as of the date hereof, and to you and
each other Underwriter named in the applicable Terms Agreement, as of the date
thereof (in each case, a "Representation Date"), as follows:
(i) The Registration Statement and the Prospectus, at
the time the Registration Statement became effective and at each time
thereafter on which the Company filed an Annual Report on Form 10-K
with the Commission, complied, and as of each Representation Date will
comply, in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations; the Registration Statement, at the time
the Registration Statement became effective and at each time
thereafter on which the Company filed an Annual Report on Form 10-K
with the Commission, did not, and at each time thereafter on which any
amendment to the Registration Statement becomes effective or the
Company files an Annual Report on Form 10-K with the Commission and as
of each Representation Date, and at the Closing Time (as hereinafter
defined), 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, as of the date hereof, does not, and as of each
Representation Date will not, include an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through you
expressly for use in the Registration Statement or Prospectus.
(ii) The accountants who certified the financial
statements and supporting schedules included or incorporated
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by reference in the Registration Statement and the Prospectus are
independent public accountants as required by the 1933 Act and the
1933 Act Regulations; and there have been no disagreements with any
accountants or "reportable events" (as defined in Item 304 of
Regulation S-K promulgated by the Commission) required to be disclosed
in the Prospectus or elsewhere pursuant to such Item 304.
(iii) The historical financial statements of the Company
included or incorporated by reference in the Registration Statement
and the Prospectus present fairly the financial position of the
Company and its Subsidiaries taken as a whole as at the dates
indicated and the results of operations for the periods specified;
except as otherwise stated in the Registration Statement and the
Prospectus, said financial statements have been prepared in conformity
with generally accepted accounting principles applied (except, in the
case of interim financial results, for the notes thereto and ordinary
year-end adjustments) on a consistent basis and comply with the
applicable accounting requirements of the 1933 Act (including, without
limitation, Rule 3-14 and Rule 3-15 of Regulation S-X promulgated by
the Commission), and all adjustments necessary for a fair presentation
of the results for such periods have been made; the supporting
schedules included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the information required
to be stated therein; and the selected financial data (both historical
and, if any, pro forma) included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the
information shown therein and have been compiled on a basis consistent
with the related financial statements presented therein.
(iv) The historical summaries of revenue and certain
operating expenses included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the revenue
and those operating expenses included in such summaries of the
properties related thereto for the periods specified in conformity
with generally accepted accounting principles; the pro forma
consolidated financial statements included or incorporated by
reference in the Registration Statement and the Prospectus, if any,
present fairly the pro forma financial position of the Company and its
Subsidiaries taken as a whole as of the dates indicated and the
results of operations for the periods specified; and any such pro
forma financial statements have been prepared in accordance with
generally accepted accounting principles applied on a basis consistent
with the audited financial statements of the Company and its
Subsidiaries included or incorporated by
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reference in the Registration Statement and the Prospectus, the
assumptions on which such pro forma financial statements have been
prepared were, when such pro forma financial statements were prepared,
reasonable and are summarized in the notes thereto, and any such pro
forma financial statements have been prepared, and the pro forma
adjustments set forth therein have been applied, in accordance with
the applicable accounting requirements of the 1933 Act and the 1933
Act Regulations (including, without limitation, Regulation S-X
promulgated by the Commission), and any such pro forma adjustments
have been properly applied to the historical amounts in the
compilation of such statements.
(v) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus,
there has not occurred any material adverse change, or any development
involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business affairs, business
prospects or operations of the Company and its Subsidiaries taken as a
whole from that set forth in the Prospectus.
(vi) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus,
(1) neither the Company nor its Subsidiaries have incurred any
material liability or obligation, direct or contingent, nor entered
into any material transaction not in the ordinary course of business;
(2) neither the Company nor its Subsidiaries have purchased any of the
Company's outstanding Common Stock, nor declared, paid or otherwise
made any dividend or distribution of any kind on the Company's Common
Stock other than ordinary and customary dividends; and (3) there has
not been any material change in the capital, Common Stock, short-term
debt or long-term debt of either the Company or its Subsidiaries,
except in each case as described in or contemplated by the Prospectus.
(vii) The Operating Partnership has been duly formed, is
validly existing as a partnership in good standing under the laws of
the State of Delaware, has the partnership power and authority to own
its property and any property proposed to be acquired by it and
referred to in the Prospectus and to conduct its business as described
in the Prospectus and is duly qualified to transact such business, and
is in good standing in each jurisdiction in which the conduct of its
business or its ownership, management or leasing of property requires
such qualification except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Company and its Subsidiaries taken as a whole.
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(viii) The Agreement of Limited Partnership of the
Operating Partnership (the "Agreement of Limited Partnership") has
been duly and validly authorized, executed and delivered by the
Company and, to its best knowledge, by the partners of the Operating
Partnership, including the Company in its capacity as sole general
partner of the Operating Partnership, and is a valid and binding
agreement of the Company and, to its best knowledge, of the partners
of the Operating Partnership, including the Company in its capacity as
sole general partner of the Operating Partnership, enforceable in
accordance with its terms.
(ix) Each of the Company, the Management Company and
the Building Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the jurisdiction
of its incorporation, has the corporate power and authority to own its
property and any property proposed to be acquired by it and referred
to in the Prospectus and to conduct its business as described in the
Prospectus and is duly qualified to transact such business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership, management or leasing of property requires
such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Company and its Subsidiaries taken as a whole; the
Company has the corporate power to enter into and perform its
obligations under this Agreement and the Terms Agreement; the Articles
Supplementary relating to the Preferred Shares, if applicable, will be
in full force and effect as of each applicable Representation Date
and, except as otherwise stated in the Prospectus, all of the issued
and outstanding capital stock or other ownership interests in the
Management Company and the Building Company have been validly issued
and are owned by the Operating Partnership, directly or through
subsidiaries, and by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity, except for security interests granted in respect of
indebtedness of the Company or any of its subsidiaries and described
in the Prospectus.
(x) Except as disclosed in the Registration Statement,
the Company has no material subsidiaries.
(xi) All shares of Common Stock and Preferred Stock
outstanding prior to the issuance of the Underwritten Securities have
been duly authorized and are validly issued, fully paid and
non-assessable.
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(xii) Each of the partnership and joint venture
agreements to which the Company and any of its Subsidiaries is a
party, and which relates to real property, has been duly authorized,
executed and delivered on the part of the Company and any of such
Subsidiaries by any of them that is a party thereto and constitutes
the valid agreement thereof, enforceable in accordance with its terms,
except as limited by (a) the effect of bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to or affecting the rights or remedies of creditors or
(b) the effect of general principles of equity, whether enforcement is
considered in a proceeding in equity or at law, and the discretion of
the court before which any proceeding therefor may be brought; and the
execution, delivery and performance of any of such agreements by the
Company and any of its Subsidiaries, as applicable, did not, at the
time of execution and delivery, and does not constitute a breach of,
or default under, the charter, by-laws, agreement of limited
partnership (or other organizational documents) of such party or any
material contract, lease or other instrument to which such party is a
party or by which its properties may be bound or any law,
administrative regulation or administrative or court decree.
(xiii) The authorized capital stock of the Company
conforms as to legal matters to the description thereof contained in
the Prospectus. The Company has duly reserved a sufficient number of
shares of Common Stock for issuance upon exchange of outstanding units
in the Operating Partnership.
(xiv) The Underwritten Securities being sold pursuant to
this Agreement and the applicable Terms Agreement have, as of each
applicable Representation Date, been duly authorized by the Company
and such Underwritten Securities have been duly authorized for
issuance and sale pursuant to this Agreement and such Terms Agreement
and such Underwritten Securities, when issued and delivered by the
Company pursuant to this Agreement against payment of the
consideration set forth in such Terms Agreement or any Delayed
Delivery Contract (as hereinafter defined), will be validly issued,
fully paid and non-assessable, and the issuance of such Underwritten
Securities will not be subject to preemptive rights; the Preferred
Shares, if applicable, conform to the provisions of the Articles
Supplementary; and the Underwritten Securities being sold pursuant to
the applicable Terms Agreement conform in all material respects to all
statements relating thereto contained in the Prospectus and will be in
substantially the form filed or
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incorporated by reference, as the case may be, as an exhibit to the
Registration Statement.
(xv) If applicable, the shares of Common Stock issuable
upon conversion of any of the Preferred Shares will have been duly and
validly authorized and reserved for issuance upon such conversion by
all necessary corporate action and such shares, when issued upon such
conversion, will be duly authorized and validly issued and will be
fully paid and non-assessable, and the issuance of such shares upon
conversion will not be subject to preemptive or other similar rights;
the shares of Common Stock issuable upon conversion of any of the
Preferred Shares, conform in all material respects to all statements
relating thereto contained in the Prospectus.
(xvi) The execution and delivery by each of the Company and
the Operating Partnership of this Agreement, the performance by each
of the Company and the Operating Partnership of its obligations under
this Agreement and the execution and delivery by the Company of the
applicable Terms Agreement will not contravene any provision of
applicable law or the articles of incorporation or bylaws of the
Company or the Agreement of Limited Partnership of the Operating
Partnership or any agreement or other instrument binding upon the
Company or any of its Subsidiaries that is material to the Company and
its Subsidiaries, taken as a whole, or any judgment, order or decree
of any governmental body, agency or court having jurisdiction over the
Company or any Subsidiary, and no consent, approval, authorization or
order of, or qualification with, any governmental body or agency is
required for the performance by each of the Company and the Operating
Partnership of its obligations under this Agreement and the applicable
Terms Agreement, except such as may be required by the securities or
Blue Sky laws of the various states in connection with the offer and
sale of the Underwritten Securities.
(xvii) The Company has since February 12, 1994 been
qualified as a real estate investment trust ("REIT") under Sections
856 through 860 of the Internal Revenue Code of 1986, as amended (the
"Code"), and has elected to be taxed as a REIT under the Code, and
will continue to be organized and operated in a manner so as to
qualify as a REIT.
(xviii) None of the Company, the Operating Partnership,
the Management Company or the Building Company is an "investment
company" or an entity "controlled" by an "investment company" as such
terms are defined in the Investment Company Act of 1940, as amended.
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(xix) There are no legal or governmental proceedings
pending or threatened to which the Company, any Subsidiary or any
Affiliate (as defined in Rule 12b-2 under the Exchange Act) of the
Company is a party or to which any of their properties or the
Communities (as that term is defined in the Prospectus) is subject
that are required to be described in the Registration Statement or the
Prospectus and are not so described or any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to
the Registration Statement that are not described or filed as
required.
(xx) The Company and its Subsidiaries own or possess
any trademarks, service marks, trade names or copyrights required in
order to conduct their respective businesses as described in the
Prospectus, other than those which the failure to possess or own would
not have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of
the Company and its Subsidiaries.
(xxi) The Company and the Operating Partnership have all
necessary authorizations, approvals, permits and consents of any court
or governmental authority or agency necessary in connection with the
consummation by the Company or the Operating Partnership of the
transactions contemplated by this Agreement and the applicable Terms
Agreement, including such as may be required under the 1933 Act or the
1933 Act Regulations, state securities laws, real estate syndication
laws or under the rules and regulations of the National Association of
Securities Dealers, Inc.
(xxii) The Company and each Subsidiary has all necessary
consents, authorizations, approvals, orders, certificates and permits
of and from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, to
own, lease, license and use its properties and assets and to conduct
its business in the manner described in the Prospectus, except to the
extent that the failure to obtain or file would not have a material
adverse effect on the Company and its subsidiaries taken as a whole.
(xxiii) The Company has full right, power and authority to
enter into this Agreement and the applicable Terms Agreement, and this
Agreement has been, and as of each Representation Date the applicable
Terms Agreement will have
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been, duly authorized, executed and delivered by the Company.
(xxiv) The Operating Partnership has full right, power
and authority to enter into this Agreement and this Agreement has been
duly authorized, executed and delivered by the Operating Partnership.
(xxv) The documents incorporated or deemed to be
incorporated by reference in the Prospectus, at the time they were or
hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission under the 1934 Act (the "1934
Act Regulations"), and, when read together with the other information
in the Prospectus, at the time the Registration Statement became
effective and as of the applicable Representation Date or Closing Time
(as defined herein) or during the period specified in Section 3(f),
did not and will not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(xxvi) (i) The Company and its Subsidiaries have good and
marketable title in fee simple to all real property, free and clear of
all liens, in each case except such as are described in the Prospectus
or such as do not materially affect the value of such property and do
not materially interfere with the use made and proposed to be made of
such property by the Company and by its Subsidiaries; (ii) any real
property and buildings held or proposed to be held under lease by the
Company and its Subsidiaries are, or will be, held by them under
valid, subsisting and enforceable leases with such exceptions as are
not material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and by its
Subsidiaries, in each case except as described in or contemplated by
the Prospectus; (iii) the construction, management and operation of
the buildings, fixtures and other improvements located on the
Communities as currently conducted or existing are not in violation of
any applicable building code, zoning ordinance or other law or
regulation except where such violation of any applicable building
code, zoning ordinance or other law or regulation would not, singly or
in the aggregate, have a material adverse effect on the Company and
its Subsidiaries taken as a whole, (iv) neither the Company, the
Operating Partnership nor the Management Company has received notice
of any proposed
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material special assessment or any proposed material change in any
property tax, zoning or land use laws or availability of water for
irrigation affecting all or any portion of the Communities; (v)
neither the Company nor the Operating Partnership is aware of, nor
reasonably should be aware of, any material delay with respect to the
construction of Communities referred to in the Prospectus, or any
material increase in the estimated cost of such construction, or any
other matter materially detrimental to the construction, or any factor
which may, through passage of time or otherwise, give rise to such
delay, cost increase or detriment; (vi) there do not exist any
material violations of any declaration of covenants, conditions and
restriction (the "CC&R's") with respect to any of the Communities, nor
is there any existing state of facts or circumstances or condition or
event which could, with the giving of notice or passage of time, or
both, constitute such a violation; and (vii) the improvements
comprising any portion of the Communities (the "Improvements") are
free of any and all material physical, mechanical, structural, design
and construction defects and the mechanical, electrical and utility
systems servicing the Improvements (including, without limitation, all
water, electric, sewer, plumbing, heating, ventilation, gas and air
conditioning) are in good condition and proper working order and are
free of material defects.
(xxvii) The Operating Partnership has an ALTA Extended
Coverage Owner's Policy of Title Insurance on all of the Communities
and such title insurance is in full force and effect.
(xxviii) The Company and each Subsidiary (i) is in
compliance with 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) has received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) is
in compliance with all terms and conditions of any such permit,
license or approval, except with respect to clauses (i), (ii) and
(iii) above, where such noncompliance with Environmental Laws, failure
to receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or
approvals are otherwise disclosed in the Prospectus or would not,
singly or in the aggregate, have a material adverse effect on the
Company and its subsidiaries taken as a whole.
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(xxix) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval,
any related constraints on operating activities and any potential
liabilities to third parties) that would, singly or in the aggregate,
have a material adverse effect on the Company and its Subsidiaries
taken as a whole.
(xxx) The Company and its Subsidiaries are insured by
insurers of recognized financial responsibility against such losses
and risks and in such amounts as are customary in the businesses in
which they are engaged; neither the Company nor any Subsidiary has
been refused any insurance coverage sought or applied for, and neither
the Company nor any Subsidiary has any reason to believe that it will
not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers
as may be necessary to continue its business at a cost that would not
materially and adversely affect the condition, financial or otherwise,
or the earnings, business or operations of the Company and its
Subsidiaries taken as a whole, except as described in or contemplated
by the Prospectus.
(xxxi) The assets of the Company do not constitute "plan
assets" under the Employee Retirement Income Security Act of 1974, as
amended.
(xxxii) There is no default under any indenture, mortgage,
deed of trust, voting trust agreement, loan agreement, bond,
debenture, note agreement or other evidence of indebtedness, lease,
contract or other agreement or instrument relating to any of the
Communities, the violation of which would individually or in the
aggregate have a material adverse effect on the Company and its
Subsidiaries taken as a whole.
(xxxiii) The mortgages and deeds of trust encumbering the
Communities are not cross-defaulted or cross-collateralized with any
other property not owned directly or indirectly by the Company or its
Subsidiaries.
(xxxiv) If applicable, the shares of Common Stock issued
pursuant to the applicable Terms Agreement or issuable upon conversion
of any Preferred Shares issued pursuant to the applicable Terms
Agreement have been approved for listing on the New York Stock
Exchange, subject to final notice of issuance.
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(b) Any certificate signed by any officer of the Company in such
capacity or as general partner of the Operating Partnership and delivered to
you or to counsel for the Underwriters in connection with the offering of the
Underwritten Securities shall be deemed a representation and warranty by the
Company or the Operating Partnership, as the case may be, to each Underwriter
participating in such offering as to the matters covered thereby on the date of
such certificate.
Section 2. Purchase and Sale.
(a) The several commitments of the Underwriters to purchase the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to have been made on the basis of the representations and warranties
herein contained and shall be subject to the terms and conditions herein set
forth.
(b) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company may grant, if so provided in the applicable Terms Agreement relating to
the Initial Underwritten Securities, an option to the Underwriters named in
such Terms Agreement, severally and not jointly, to purchase up to the number
of Option Securities set forth therein at the same price per Option Security as
is applicable to the Initial Underwritten Securities. Such option, if granted,
will expire 30 days or such lesser number of days as may be specified in the
applicable Terms Agreement after the Representation Date relating to the
Initial Underwritten Securities, and may be exercised in whole or in part from
time to time only for the purpose of covering over-allotments which may be made
in connection with the offering and distribution of the Initial Underwritten
Securities upon notice by you to the Company setting forth the number of Option
Securities as to which the several Underwriters are then exercising the option
and the time, date and place of payment and delivery for such Option
Securities. Any such time and date of delivery (a "Date of Delivery") shall be
determined by you, but shall not be later than three full business days and not
be earlier than two full business days after the exercise of said option,
unless otherwise agreed upon by you and the Company. If the option is
exercised as to all or any portion of the Option Securities, each of the
Underwriters, acting severally and not jointly, will purchase that proportion
of the total number of Option Securities then being purchased which the number
of Initial Underwritten Securities each such Underwriter has severally agreed
to purchase as set forth in the applicable Terms Agreement bears to the total
number of Initial Underwritten Securities (except as otherwise provided in the
applicable Terms Agreement), subject to such adjustments as you
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in your discretion shall make to eliminate any sales or purchases of fractional
Initial Underwritten Securities.
(c) Payment of the purchase price for, and delivery of, the
Underwritten Securities to be purchased by the Underwriters shall be made at
the office of ▇▇▇▇▇ & ▇▇▇▇ LLP, 57th Floor, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or at such other place as shall be agreed upon by you and
the Company, at 10:00 A.M., New York City time, on the third business day
(unless postponed in accordance with the provisions of Section 10) following
the date of the applicable Terms Agreement or, if pricing takes place after
4:30 p.m. New York City time on the date of the applicable Terms Agreement, on
the fourth business day (unless postponed in accordance with the provisions of
Section 10) following the date of the applicable Terms Agreement or at such
other time as shall be agreed upon by you and the Company (each such time and
date being referred to as a "Closing Time"). In addition, in the event that
any or all of the Option Securities are purchased by the Underwriters, payment
of the purchase price for, and delivery of certificates representing, such
Option Securities, shall be made at the above-mentioned offices of ▇▇▇▇▇ & Wood
LLP, or at such other place as shall be agreed upon by you and the Company on
each Date of Delivery as specified in the notice from you to the Company.
Unless otherwise specified in the applicable Terms Agreement, payment shall be
made to the Company by wire transfer of immediately available funds to a bank
account designated by the company, against delivery to you for the respective
accounts of the Underwriters for the Underwritten Securities to be purchased by
them. The Underwritten Securities shall be in such authorized denominations
and registered in such names as you may request in writing at least one
business day prior to the applicable Closing Time or Date of Delivery, as the
case may be. The Underwritten Securities, which may be in temporary form, will
be made available for examination and packaging by you on or before 3:00 P.M.
on the first business day prior to the Closing Time or Date of Delivery, as the
case may be.
If authorized by the applicable Terms Agreement, the Underwriters
named therein may solicit offers to purchase Underwritten Securities from the
Company pursuant to delayed delivery contracts ("Delayed Delivery Contracts")
substantially in the form of Exhibit B hereto with such changes therein as the
Company may approve. As compensation for arranging Delayed Delivery Contracts,
the Company will pay to you at Closing Time, for the respective accounts of the
Underwriters, a fee specified in the applicable Terms Agreement for each of the
Underwritten Securities for which Delayed Delivery Contracts are made at the
Closing Time as is specified in the applicable Terms Agreement. Any Delayed
Delivery Contracts are to be with institutional
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investors of the types described in the Prospectus. At the Closing Time, the
Company will enter into Delayed Delivery Contracts (for not less than the
minimum number of Underwritten Securities per Delayed Delivery Contract
specified in the applicable Terms Agreement) with all purchasers proposed by
the Underwriters and previously approved by the Company as provided below, but
not for an aggregate number of Underwritten Securities in excess of that
specified in the applicable Terms Agreement. The Underwriters will not have
any responsibility for the validity or performance of Delayed Delivery
Contracts.
You shall submit to the Company, at least two business days prior to
the Closing Time, the names of any institutional investors with which it is
proposed that the Company will enter into Delayed Delivery Contracts and the
number of Underwritten Securities to be purchased by each of them, and the
Company will advise you, at least one business day prior to the Closing Time,
of the names of the institutions with which the making of Delayed Delivery
Contracts is approved by the Company and the number of Underwritten Securities
to be covered by each such Delayed Delivery Contract.
The number of Underwritten Securities agreed to be purchased by the
several Underwriters pursuant to the applicable Terms Agreement shall be
reduced by the number of Underwritten Securities covered by Delayed Delivery
Contracts as to each Underwriter as set forth in a written notice delivered by
you to the Company; provided, however, that the total number of Underwritten
Securities to be purchased by all Underwriters shall be the total number of
Underwritten Securities covered by the applicable Terms Agreement, less the
number of Underwritten Securities covered by Delayed Delivery Contracts.
SECTION 3. Covenants of the Company and the Operating Partnership.
Each of the Company and the Operating Partnership covenants with you, and with
each Underwriter participating in the offering of Underwritten Securities, as
follows:
(a) Immediately following the execution of the applicable Terms
Agreement, the Company will prepare a Prospectus Supplement setting forth the
number of Underwritten Securities covered thereby and their terms not otherwise
specified in the Prospectus pursuant to which the Underwritten Securities are
being issued, the names of the Underwriters participating in the offering and
the number of Underwritten Securities which each severally has agreed to
purchase, the names of the Underwriters acting as co-managers in connection
with the offering, the price at which the Underwritten Securities are to be
purchased by the Underwriters from the Company, the initial public offering
price, if any, the selling concession and reallowance, if any, any delayed
delivery
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arrangements, and such other information as you and the Company deem
appropriate in connection with the offering of the Underwritten Securities; and
the Company will, by the close of business in New York on the second business
day immediately succeeding the date of the applicable Terms Agreement, transmit
copies of the Prospectus Supplement to the Commission for filing pursuant to
Rule 424(b) of the 1933 Act Regulations and will furnish to the Underwriters
named therein as many copies of the Prospectus (including such Prospectus
Supplement) as you shall reasonably request. If the Company elects to rely on
Rule 434 under the 1933 Act Regulations, the Company will prepare an
abbreviated term sheet that complies with the requirements of Rule 434 under
the 1933 Act Regulations and will provide the Underwriters with copies of the
form of Rule 434 Prospectus, in such number as the Underwriters may reasonably
request, and file or transmit for filing with the Commission the form of
Prospectus complying with Rule 434(c)(2) of the 1933 Act Regulations in
accordance with Rule 424(b) of the 1933 Act Regulations.
(b) The Company will notify you immediately, and confirm such notice
in writing, of (i) the effectiveness of any amendment to the Registration
Statement, (ii) the transmittal to the Commission for filing of any Prospectus
Supplement or other supplement or amendment to the Prospectus or any document
to be filed pursuant to the 1934 Act relating to or affecting any Securities
offered or proposed to be offered by you or the Underwriters pursuant hereto,
(iii) the receipt of any comments from the Commission relating to or affecting
any Securities offered or proposed to be offered by you or the Underwriters
pursuant hereto, (iv) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information relating to or affecting any Securities offered or
proposed to be offered by you or the Underwriters pursuant hereto, and (v) 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 relating to or affecting any Securities offered or proposed to be
offered by you or the Underwriters pursuant hereto. The Company will make
every reasonable effort to prevent the issuance of any such stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
(c) At any time when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities, the Company will give you notice of its intention to file or
prepare any amendment to the Registration Statement or any amendment or
supplement to the Prospectus, whether pursuant to the 1933 Act, 1934 Act or
otherwise, (including any revised Prospectus which the Company
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proposes for use by the Underwriters in connection with an offering of
Underwritten Securities which differs from the Prospectus on file at the
Commission at the time the Registration Statement first becomes effective,
whether or not such revised Prospectus is required to be filed pursuant to Rule
424(b) of the 1933 Act Regulations, or any abbreviated term sheet prepared in
reliance on Rule 434 of the 1933 Act Regulations) and will furnish you with
copies of any such amendment or supplement a reasonable amount of time prior to
such proposed filing or preparation, as the case may be. The Company will not,
during such time, file or prepare any such amendment or supplement or other
documents in a form to which you or counsel for the Underwriters shall
reasonably object.
(d) The Company will deliver to each Underwriter as many signed and
conformed copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) as such Underwriter reasonably requests.
(e) The Company will furnish to each Underwriter, from time to time
during the period when the Prospectus is required to be delivered under the
1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities, such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request for the purposes
contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the
1934 Act Regulations.
(f) If at any time when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities any event shall occur or condition exist as a result of which it is
necessary, in the reasonable opinion of counsel for the Underwriters or counsel
for the Company, to amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the reasonable
opinion of either such counsel, at any such time to amend or supplement the
Registration Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, then the Company will
promptly prepare and file with the Commission such amendment or supplement,
whether by filing documents pursuant to the 1933 Act, the 1934 Act or
otherwise, as may be necessary to correct such untrue statement or omission or
to make the Registration Statement and Prospectus comply with such
requirements, and the Company will furnish to the
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Underwriters a reasonable number of copies of such amendment or supplement.
(g) The Company will endeavor, in cooperation with the Underwriters,
to qualify the Underwritten Securities and shares of Common Stock issuable upon
conversion of the Preferred Shares, if any, for offering and sale under the
applicable securities laws and real estate syndication laws of such states and
other jurisdictions of the United States as you may designate and to pay all
expenses (including reasonable fees and disbursements of counsel) in connection
with such qualification and in connection with any review of the offering of
the Underwritten Securities by the National Association of Securities Dealers,
Inc. In each jurisdiction in which the Underwritten Securities and shares of
Common Stock issuable upon conversion of the Preferred Shares, if any, have
been so qualified, the Company will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification in
effect for so long as may be required for the distribution of the Underwritten
Securities; provided, however, that the Company shall not be obligated to
qualify as a foreign corporation in any jurisdiction where it is not so
qualified or to take any action that would subject it to general service of
process in any jurisdiction where it is not so subject.
(h) With respect to each sale of Underwritten Securities, the Company
will make generally available to its security holders as soon as practicable,
but not later than 90 days after the close of the period covered thereby, an
earnings statement (in form complying with the provisions of Rule 158 of the
1933 Act Regulations) covering a twelve month period beginning not later than
the first day of the Company's fiscal quarter next following the "effective
date" (as defined in such Rule 158) of the Registration Statement.
(i) The Company will use its best efforts to meet the requirements to
qualify as a "real estate investment trust" under the Code for the taxable year
in which sales of the Underwritten Securities are to occur, subject to the good
faith exercise by the Company's Board of Directors of its power to manage the
business and affairs of the Company and the discharge of its legal duties.
(j) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act or the 1934 Act in connection with sales of the
Underwritten Securities, will file all documents required to be filed with the
Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time
periods prescribed by the 1934 Act and the 1934 Act Regulations, including any
available extensions or exemptions.
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(k) Neither the Company nor its executive officers and directors
will, during a period of 90 days from the date of the applicable Terms
Agreement, with respect to the Underwritten Securities covered thereby, without
your prior written consent, offer or sell, grant any option for the sale of, or
enter into any agreement to sell, any of the Company's or Operating
Partnership's equity securities (other than the Underwritten Securities which
are to be sold pursuant to such Terms Agreement), except for Common Stock
issued pursuant to this Agreement, pursuant to dividend reinvestment and/or
stock purchase plans, employee and director stock option plans or other
compensation or benefit plans.
(l) If the Preferred Shares are convertible into shares of Common
Stock, the Company will reserve and keep available at all times, free of
preemptive or other similar rights, a sufficient number of shares of Common
Stock for the purpose of enabling the Company to satisfy any obligations to
issue such shares upon conversion of the Preferred Shares.
(m) If applicable, the Company will use its best efforts to list the
shares of Common Stock on the New York Stock Exchange or such other national
exchange on which the Company's shares of Common Stock are then listed.
(n) If Preferred Shares are convertible into shares of Common Stock,
the Company will use its best efforts to list the shares of Common Stock
issuable on Conversion of the Preferred Shares on the New York Stock Exchange
or such other national exchange on which the Company's shares of Common Stock
are then listed.
(o) The Company has complied and will comply with all of the
provisions of Florida H.B. 1771, Section 1, 17,130 of the Florida Securities
and Investors Act, and all regulations thereunder relating to issuers doing
business
with Cuba.
(p) The Company will apply the net proceeds from each sale of the
Underwritten Securities as set forth under "Use of Proceeds" in each applicable
Prospectus Supplement.
Section 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement or the
applicable Terms Agreement, including (i) the printing and filing of the
Registration Statement as originally filed and of each amendment thereto, (ii)
the printing, reproduction and filing of this Agreement and the applicable
Terms Agreement, and such other documents as may be required in connection with
the offering, purchase, sale and delivery of the Underwritten Securities, (iii)
the preparation,
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issuance and delivery of the Underwritten Securities and any certificates for
the Underwritten Securities to the Underwriters, (iv) the fees and
disbursements of the Company's counsel and accountants and other advisors or
agents (including transfer agents and registrars), (v) the qualification of the
Underwritten Securities and the shares of Common Stock issuable upon conversion
of Preferred Shares, if any, under securities laws and real estate syndication
laws in accordance with the provisions of Section 3(g), including filing fees
and the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
Survey, (vi) the printing, reproduction and delivery to the Underwriters of
copies of the Blue Sky Survey, (vii) the printing and delivery to the
Underwriters of copies of the Registration Statement as originally filed and of
each amendment thereto, each preliminary prospectus and of the Prospectus and
any amendments or supplements thereto, (viii) any fees charged by nationally
recognized statistical rating organizations for the Rating of the Underwritten
Securities, if applicable, (ix) the fees and expenses, if any, incurred with
respect to the listing of the Underwritten Securities, or the shares of Common
Stock issuable on conversion of the Preferred Shares, if any, on any national
securities exchange, and (x) the filing fees, if any, incurred with respect to
any filing with the National Association of Securities Dealers, Inc.
If the applicable Terms Agreement is terminated by you in accordance
with the provisions of Section 5, Section 9(b)(i) or 9(b)(ii), the Company
shall reimburse the Underwriters named in such Terms Agreement for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
Section 5. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase Underwritten Securities pursuant to
the applicable Terms Agreement are subject to the accuracy of the
representations and warranties of the Company and the Operating Partnership
herein contained, to the accuracy of the statements of the Company's officers
on behalf of the Company, and on behalf of the Company in its capacity as
general partner of the Operating Partnership, made in any certificate pursuant
to the provisions hereof, to the performance by each of the Company and the
Operating Partnership of all of its covenants and other obligations hereunder,
and to the following further conditions:
(a) At Closing Time, (i) no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, (ii) if
Preferred Shares are being
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offered, the rating assigned by any nationally recognized statistical rating
organization to any preferred stock of the Company as of the date of the
applicable Terms Agreement shall not have been lowered since such date nor
shall such rating organization have publicly announced that it has placed any
preferred stock of the Company on what is commonly termed a "watch list" for
possible downgrading, and (iii) there shall not have come to your attention any
facts that would cause you to believe that the Prospectus, together with the
applicable Prospectus Supplement, at the time it was required to be delivered
to purchasers of the Underwritten Securities, included an untrue statement of a
material fact or omitted to state a material fact necessary in order to make
the statements therein, in light of the circumstances existing at such time,
not misleading.
(b) At Closing Time, you shall have received:
(1) The favorable opinion, dated as of Closing Time, of
▇▇▇▇▇▇▇, Procter & ▇▇▇▇ LLP, counsel for the Company and the
Subsidiaries, in form and substance satisfactory to counsel for the
Underwriters, to the effect that:
(i) The Operating Partnership has been duly formed,
is validly existing as a partnership in good standing under
the laws of the state of Delaware, has the partnership power
and authority to own its property and any property proposed to
be acquired by it and referred to in the Prospectus and is
duly qualified to transact such business and is in good
standing in each jurisdiction in which the conduct of its
business or its ownership, management or leasing of properties
requires such qualification except to the extent that the
failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its
Subsidiaries taken as a whole.
(ii) Each of the Company, the Management Company and
the Building Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has the corporate power
and authority to own its property and any property proposed to
be acquired by it and referred to in the Prospectus and to
conduct its business as described in the Prospectus and is
duly qualified to transact such business and is in good
standing in each jurisdiction in which the conduct of its
business or its ownership, management or leasing of property
requires such qualification, except to the extent that the
failure to be so qualified or be in
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good standing would not have a material adverse effect
on the Company and its Subsidiaries taken as a whole.
(iii) The authorized Common Stock of the Company
conforms as to legal matters to the description thereof
contained in the Prospectus as of the date set forth therein.
(iv) Units owned by the Company are validly issued
and owned, directly or indirectly, by the Company, free and
clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(v) Each of this Agreement, the applicable Terms
Agreement and the Delayed Delivery Contracts, if any, has been
duly authorized, executed and delivered by the Company.
(vi) This Agreement has been duly authorized,
executed and delivered by the Operating Partnership.
(vii) The execution and delivery by each of the
Company and the Operating Partnership of, and the performance
by each of the Company and the Operating Partnership of its
obligations under this Agreement, and by the Company under the
applicable Terms Agreement, will not contravene any provision
of applicable law or the articles of incorporation or bylaws
of the Company or the Agreement of Limited Partnership or, to
such counsel's knowledge after due inquiry, (a) any agreement
or other instrument binding upon the Company or any of its
Subsidiaries that is material to the Company and its
Subsidiaries, taken as a whole, or (b) any judgment, order or
decree of any governmental body, agency or court having
jurisdiction over the Company or any Subsidiary; and no
consent, approval, authorization or order of, or qualification
with, any governmental body or agency is required for the
performance by each of the Company and the Operating
Partnership of its obligations under this Agreement and by the
Company under the applicable Terms Agreement, except such as
may be required by the securities or Blue Sky laws of the
various states in connection with the offer and sale of the
Underwritten Securities.
(viii) The Underwritten Securities being sold
pursuant to this Agreement and the applicable Terms Agreement
have been duly and validly authorized by all
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necessary corporate action on the part of the Company
and such Underwritten Securities have been duly authorized for
issuance and sale pursuant to this Agreement and such Terms
Agreement; and such Underwritten Securities, when issued and
delivered by the Company pursuant to this Agreement against
payment of the consideration set forth in such Terms Agreement
or any Delayed Delivery Contract, will be validly issued,
fully paid and non-assessable, and the issuance of such
Underwritten Securities will not be subject to preemptive
rights and, if applicable, the Preferred Shares, as the case
may be, conform to the provisions of the Articles
Supplementary.
(ix) If applicable, the shares of Common Stock
issuable upon conversion of any of the Preferred Shares have
been duly and validly authorized and reserved for issuance
upon such conversion or exercise by all necessary corporate
action on the part of the Company and such shares, when issued
upon such conversion in accordance with the charter of the
Company, the Terms Agreement and the Delayed Delivery
Contract, as the case may be, will be duly authorized and
validly issued and will be fully paid and non-assessable, and
the issuance of such shares upon such conversion will not be
subject to preemptive rights arising by operation of law or
the Company's Articles of Incorporation, as amended and
restated.
(x) If applicable, the relative rights, preferences,
interests and powers of the Preferred Shares are as set forth
in the Articles Supplementary relating thereto, and all such
provisions are valid under the Maryland General Corporation
Law.
(xi) The Registration Statement is effective under
the 1933 Act; any required filing of the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made in
the manner and within the time period required by Rule 424(b);
and to the best of their knowledge after due inquiry, no stop
order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereof has been
issued under the 1933 Act and no proceedings therefor have
been initiated or threatened by the Commission.
(xii) Such counsel is of the opinion that each
document, if any, filed pursuant to the 1934 Act and
incorporated by reference in the Prospectus complies as
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to form in all material respects with the 1934 Act and
the applicable rules and regulations of the Commission
thereunder.
(xiii) None of the Company, the Operating
Partnership, the Management Company, or the Building Company
is an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
(xiv) Based, in part, on representations from the
Company relating to its asset composition, source of income,
shareholder diversification, distributions, record keeping and
other requirements and assumptions relating to the Company's
continued compliance with such representations, commencing
with the Company's first taxable year ended December 31, 1994,
the Company has been organized in conformity with the
requirements for qualification as a "real estate investment
trust" under the Code and its method of operation has enabled
it to and will enable it to continue to meet the requirements
for qualification as a real estate investment trust under the
Code.
(xv) The Common Stock conforms in all material
respects to the statements relating thereto contained in the
Prospectus.
(xvi) The statements set forth in the Prospectus
under the captions "The Company", "Description of Common
Stock", "Restrictions on Transfer of Capital Stock", and
"Federal Income Tax Considerations" in each case insofar as
such statements constitute summaries of the legal matters,
documents or proceedings referred to therein, fairly present
the information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters
referred to therein.
(2) The favorable opinion, dated as of Closing Time, of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel for the Company
and the Subsidiaries, in form and substance satisfactory to counsel
for the Underwriters, to the effect that:
(i) To their knowledge after due inquiry, there are
no legal or governmental proceedings pending or threatened to
which the Company or any Subsidiary or
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any Affiliate of the Company is a party or to which any
of their properties or the Communities is subject that are
required to be described in the Registration Statement or the
Prospectus and are not so described or any statutes,
regulations, contracts or other documents that are required to
be described in the Registration Statement that are not
described or filed as required.
(ii) The Company and each Subsidiary has all
necessary consents, authorizations, approvals, orders,
certificates and permits of and from, and has made all
declarations and filings with, all federal, state, local and
other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, to own,
lease, license and use its properties and assets and to
conduct its business in the manner described in the
Prospectus, except to the extent that the failure to obtain or
file would not have a material adverse effect on the Company
and its Subsidiaries taken as a whole.
(iii) The Company and each Subsidiary (1) is in
compliance with any and all applicable 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"), (2) has received all permits, licenses
or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and
(3) is in compliance with all terms and conditions of any such
permit, license or approval, except where such non-compliance
with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals
are otherwise disclosed in the Prospectus or would not, singly
or in the aggregate, have a material adverse effect on the
Company and its Subsidiaries, taken as a whole.
(3) The favorable opinion, dated as of Closing Time, of ▇▇▇▇▇
& Wood LLP, counsel for the Underwriters, with respect to the matters
set forth in paragraphs (iii), (v), (vi), (viii), (ix) if applicable,
(x) if applicable and (xvi) of subsection (b)(1).
(4) In giving their opinions required by subsections (b)(1)
and (b)(2), respectively, of this section, ▇▇▇▇▇▇▇, Procter &
▇▇▇▇ LLP, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ and ▇▇▇▇▇ & ▇▇▇▇ LLP
shall each additionally state that nothing
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has come to their attention that would lead them to believe that the
Registration Statement or any amendment thereto, except for financial
statements and schedules and other financial and statistical data, as
to which counsel need make no statement, at the time it became
effective (or, if an amendment to the Registration Statement or an
Annual Report on Form 10-K has been filed by the Company with the
Commission subsequent to the effectiveness of the Registration
Statement, then at the time such amendment becomes effective or at the
time of the most recent filing of such Annual Report, as the case may
be) or at the Representation Date, 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
not misleading or that the Prospectus or any amendment or supplement
thereto, except for financial statements and schedules and other
financial and statistical data, as to which counsel need make no
statement at the Representation Date or at Closing Time, included or
includes an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. In giving their opinions required by subsections
(b)(1) and (b)(2), respectively, of this Section, ▇▇▇▇▇▇▇, Procter &
▇▇▇▇ LLP, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ and ▇▇▇▇▇ & ▇▇▇▇ LLP may
rely, (1) as to all matters of fact, upon certificates and written
statements of officers and employees of and accountants for the
Company and Operating Partnership, (2) with respect to certain other
matters, upon certificates of appropriate government officials in such
jurisdiction, and ▇▇▇▇▇ & Wood LLP may additionally rely, as to
matters involving the laws of the State of Maryland, upon the opinion
of ▇▇▇▇▇▇▇, Procter & ▇▇▇▇ LLP (or other counsel reasonably
satisfactory to counsel for the Underwriters) in form and substance
satisfactory to counsel for the Underwriters.
(c) At Closing Time, there shall not have been, since the date of the
applicable Terms Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its Subsidiaries, taken as a whole, or
any of the Communities, whether or not arising in the ordinary course of
business; no proceedings shall be pending or, to the knowledge of the Company
or its Subsidiaries, threatened against the Company or its Subsidiaries or any
of the Communities before or by any Federal, state or other commission board or
administrative agency wherein an unfavorable decision, ruling or finding would
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materially and adversely affect the business, property, financial condition or
income of the Company and its Subsidiaries, taken as a whole, or any of the
Communities; and you shall have received a certificate of the President or
Chief Executive Officer or a Vice President of the Company and of the chief
financial or chief accounting officer of the Company in such capacity, and of
the general partner of the Operating Partnership, dated as of such Closing
Time, to the effect that (i) there has been no such material adverse change and
(ii) the representations and warranties in Section 1 are true and correct with
the same force and effect as though such Closing Time were a Representation
Date. As used in this Section 5(c), the term "Prospectus" means the Prospectus
in the form first used to confirm sales of the Underwritten Securities.
(d) At the time of execution of the applicable Terms Agreement, you
shall have received a letter dated such date from Deloitte & Touche LLP, in
form and substance satisfactory to you, to the effect that (i) they are
independent public accountants with respect to the Company and its subsidiaries
within the meaning of the 1933 Act and the 1933 Act Regulations thereunder;
(ii) it is their opinion that the consolidated financial statements and
financial statement schedules of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement and the Prospectus and
audited by them and covered by their opinions therein comply as to form in all
material respects with the applicable accounting requirements of the 1933 Act
and the 1933 Act Regulations; (iii) they have performed limited procedures, not
constituting an audit, including a reading of the latest available unaudited
interim consolidated financial statements of the Company, a reading of the
minute books of the Company, inquiries of certain officials of the Company who
have responsibility for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, and on the basis
of such limited review and procedures (which shall include, without limitation,
the procedures specified by the American Institute of Certified Public
Accountants for a review of interim financial information as described in SAS
No. 71, Interim Financial Information, with respect to the unaudited condensed
consolidated financial statements of the Company and its subsidiaries included
or incorporated by reference in the Prospectus), nothing has come to their
attention which causes them to believe (A) that any material modifications
should be made to the unaudited condensed financial statements of the Company
and its subsidiaries included or incorporated by reference in the Prospectus
for them to be in conformity with generally accepted accounting principles or
that such unaudited financial statements do not comply as to form in all
material respects with the applicable accounting requirements of the 1934 Act
and the 1934 Act Regulations, (B) the unaudited
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financial data of the Company in the Registration Statement and the Prospectus
under the caption "Selected Financial and Other Information" was not determined
on a basis substantially consistent with that used in determining the
corresponding amounts in the audited financial statements included or
incorporated by reference in the Registration Statement and the Prospectus, or
(C) at a specified date not more than three days prior to the date of the
applicable Terms Agreement, there has been any change in the capital stock of
the Company or in the consolidated mortgage notes, bonds and other loans
payable of the Company and its subsidiaries or any decrease in consolidated
total assets of the Company, as compared with the amounts shown in the most
recent consolidated balance sheet included or incorporated by reference in the
Registration Statement and the Prospectus or, during the period from April 1,
1996 through June 30, 1996, there were any decreases, as compared with the
corresponding period in the preceding year, in consolidated total revenues,
property operating income, funds from operations, net income or net income per
share of the Company and its subsidiaries, except in all instances for changes,
increases or decreases which the Registration Statement and the Prospectus
disclose have occurred or may occur; and (iv) in addition to the examination
referred to in their opinion and the limited procedures referred to in clause
(iii) above, they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts, percentages and
financial information which are included or incorporated by reference in the
Registration Statement and Prospectus and which are specified by you, and have
found such amounts, percentages and financial information to be in agreement
with the relevant accounting, financial and other records of the Company and
its subsidiaries identified in such letter.
(e) At Closing Time, you shall have received a letter, dated as of
Closing Time, from Deloitte & Touche LLP, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (d) of this
Section, except that the "specified date" referred to shall be a date not more
than three days prior to such Closing Time.
(f) At Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require for
the purpose of enabling them to pass upon the issuance and sale of the
Underwritten Securities as herein contemplated and related proceedings, or in
order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company and the Operating Partnership in connection with the
issuance and sale of the Underwritten
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Securities as herein contemplated shall be satisfactory in form and substance
to you and counsel for the Underwriters.
(g) In the event that the Underwriters exercise their option provided
in a Terms Agreement as set forth in Section 2(b) hereof to purchase all or any
portion of the Option Securities, the representations and warranties of the
Company and the Operating Partnership contained herein and the statements in
any certificates furnished by the Company and the Operating Partnership
hereunder shall be true and correct as of each applicable Date of Delivery and,
at the relevant Date of Delivery, you shall have received:
(1) A certificate, dated such Date of Delivery, of the
President and Chief Executive Officer or a Vice President of the
Company and of the chief financial or chief accounting officer of the
Company on behalf of the Company and on behalf of the Company in its
capacity as general partner of the Operating Partnership confirming
that the certificate delivered at the Closing Time pursuant to Section
5(c) hereof remains true and correct as of such Date of Delivery.
(2) The favorable opinions of ▇▇▇▇▇▇▇, Procter & ▇▇▇▇ LLP and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsels for the Company and the
Subsidiaries, in form and substance reasonably satisfactory to counsel
for the Underwriters, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Sections
5(b)(1) and 5(b)(3) hereof.
(3) The favorable opinion of ▇▇▇▇▇ & Wood LLP, counsel for
the Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Sections 5(b)(2) and
5(b)(3) hereof.
(4) A letter from Deloitte & Touche LLP, in form and
substance reasonably satisfactory to you and dated such Date of
Delivery, substantially the same in form and substance as the letter
furnished to you pursuant to Section 5(e) hereof, except that the
"specified date" in the letter furnished pursuant to this Section
5(g)(4) shall be a date not more than three days prior to such Date of
Delivery.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, the applicable Terms Agreement
may be terminated by you by notice to the Company at any time at or prior to
the Closing Time or Date of Delivery, as the case may be, and such termination
shall be
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without liability of any party to any other party except as provided in Section
4 hereof.
Section 6. Indemnification. (a) The Company and the Operating
Partnership, jointly and severally, hereby agree to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the 1933 Act as follows:
(1) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the
information deemed to be part of the Registration Statement pursuant
to Rule 430A(b) or Rule 434 of the 1933 Act Regulations, if
applicable, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Prospectus (or any amendment or supplement thereto) or the
omission, or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(2) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of
the indemnifying party; and
(3) against any and all expense whatsoever (including, the
reasonable fees and disbursements of counsel chosen by you) reasonably
incurred in investigating, preparing or defending against any
litigation, or any investigation or proceedings by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (1) or (2) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense (i) to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in
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conformity with written information furnished to the Company by any Underwriter
through you expressly for use in the Registration Statement (or any amendment
thereto) and the Prospectus (or any amendment or supplement thereto) or (ii) if
(A) any such loss, liability, claim, damage or expense arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any of such documents, (B) such untrue statement or
alleged untrue statement or omission or alleged omission is corrected in any
amendment or supplement to the Registration Statement or the Prospectus and (C)
such Underwriter, having been furnished by or on behalf of the Company with
copies of the Prospectus as so amended or supplemented, thereafter fails to
deliver such amended or supplemented Prospectus prior to or concurrently with
the sale of Underwritten Securities to the person asserting such loss, claim,
damage or liability who purchased such Underwritten Securities from such
Underwriter.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company and the Operating Partnership, the directors, each of the officers
who signed the Registration Statement and each person, if any, who controls the
Company or the Operating Partnership within the meaning of Section 15 of the
1933 Act, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the Company by
such Underwriter through you expressly for use in the Registration Statement
(or any amendment thereto) or the Prospectus (or any amendment or supplement
thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve such indemnifying party
from any liability which it may have otherwise than on account of this
indemnity agreement. An indemnifying party may participate at its own expense
in the defense of such action. If it so elects within a reasonable time after
receipt of such notice, an indemnifying party, jointly with any other
indemnifying parties receiving such notice, may assume the defense of such
action with counsel chosen by it and approved by the indemnified parties
defendant in such action, unless such indemnified parties reasonably object to
such assumption on the ground that there may be legal defenses available to
them which are different from or in addition to those available to such
indemnifying party. If an indemnifying party assumes the defense
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of such action, the indemnifying parties shall not be liable for any fees and
expenses of counsel for the indemnified parties incurred thereafter in
connection with such action. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.
(d) For purposes of this Section 6, all references to the
Registration Statement, any preliminary prospectus or the Prospectus, or any
amendment or supplement to any of the foregoing, shall be deemed to include,
without limitation, any electronically transmitted copies thereof, including,
without limitation, any copies filed with the Commission pursuant to ▇▇▇▇▇.
Section 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company, the Operating
Partnership and the Underwriters with respect to the offering of the
Underwritten Securities shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by said indemnity
agreement incurred by the Company, the Operating Partnership and one or more of
the Underwriters in respect of such offering, as incurred, in such proportions
that the Underwriters are responsible for that portion represented by the
percentage that the underwriting discount appearing on the cover page of the
Prospectus in respect of such offering bears to the initial public offering
price appearing thereon and the Company and the Operating Partnership are
responsible for the balance; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇
▇▇▇) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Underwritten Securities
purchased by it pursuant to the applicable Terms Agreement and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay in respect of such losses,
liabilities, claims, damages and expenses. For purposes of this Section, each
person, if any, who controls an Underwriter within the meaning of Section 15 of
the 1933 Act shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company who signed the
Registration Statement, and each
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person, if any, who controls the Company or the Operating Partnership within
the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as the Company and the Operating Partnership. The Underwriter's
obligations to contribute pursuant to this Section 7 are several in proportion
to their respective underwriting commitments and not joint. For purposes of
this Section 7, the Company, its subsidiaries and the Operating Partnership
shall be deemed one party jointly and severally liable for any obligations
hereunder.
Section 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or the applicable Terms Agreement, or contained in certificates of
officers of the Company and the Operating Partnership submitted pursuant
hereto, shall remain operative and in full force and effect, regardless of any
termination of this Agreement or the applicable Terms Agreement, or
investigation made by or on behalf of any Underwriter or any controlling
person, or by or on behalf of the Company or the Operating Partnership, and
shall survive delivery of and payment for the Underwritten Securities.
Section 9. Termination of Agreement. (a) This Agreement (excluding
the applicable Terms Agreement) may be terminated for any reason at any time by
the Company, the Operating Partnership or by you upon the giving of 30 days'
written notice of such termination to the other parties hereto.
(b) You may also terminate the applicable Terms Agreement, by notice
to the Company, at any time at or prior to the Closing Time (i) if there has
been, since the date of such Terms Agreement or since the respective dates as
of which information is given in the Prospectus, any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company or its Subsidiaries, taken as a whole,
whether or not arising in the ordinary course of business, or (ii) Preferred
Shares are being offered and the rating assigned by any nationally recognized
statistical rating organization to any preferred stock of the Company as of the
date of the applicable Terms Agreement shall have been lowered since such date
or if any such rating organization shall have publicly announced that it has
placed any preferred stock of the Company on what is commonly termed at "watch
list" for possible downgrading; (iii) if there has occurred any material
adverse change in the financial markets in the United States or elsewhere or
any outbreak of hostilities or escalation thereof or other calamity or crisis
the effect of which is such as to make it, in your judgment, impracticable to
market the Underwritten Securities or enforce contracts for the sale of the
Underwritten Securities, or (iv) if trading in any of the securities of the
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Company has been suspended or limited by the Commission or the New York Stock
Exchange, or if trading generally on either the New York Stock Exchange or the
American Stock Exchange has been suspended or limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices for securities
have been required, by either of said Exchanges or by order of the Commission
or any other governmental authority, or if a banking moratorium has been
declared by either Federal, New York or Maryland authorities. As used in this
Section 9(b), the term "Prospectus" means the Prospectus in the form first used
to confirm sales of the Underwritten Securities.
(c) In the event of any such termination, (x) the covenants set forth
in Section 3 with respect to any offering of Underwritten Securities shall
remain in effect so long as any Underwriter owns any such Underwritten
Securities purchased from the Company pursuant to the applicable Terms
Agreement and (y) the covenant set forth in Section 3(h) hereof, the provisions
of Section 4 hereof, the indemnity and contribution agreements set forth in
Sections 6 and 7 hereof, and the provisions of Sections 8 and 13 hereof shall
remain in effect.
Section 10. Default by One or More of the Underwriters. If one or
more of the Underwriters shall fail at the Closing Time to purchase the
Underwritten Securities which it or they are obligated to purchase under the
applicable Terms Agreement (the "Defaulted Securities"), then you shall have
the right, within 24 hours thereafter, to make arrangements for one or more of
the non-defaulting Underwriters, or any other underwriters, to purchase all,
but not less than all, of the Defaulted Securities in such amounts as may be
agreed upon and upon the terms herein set forth; if, however, you shall not
have completed such arrangements within such 24-hour period, then:
(a) if the total number of Defaulted Securities does not exceed 10%
of the total number of Underwritten Securities to be purchased pursuant to such
Terms Agreement, the non-defaulting Underwriters named in such Terms Agreement
shall be obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the total number of Defaulted Securities exceeds 10% of the
total number of Underwritten Securities to be purchased pursuant to such Terms
Agreement, the applicable Terms Agreement shall terminate without liability on
the part of any non-defaulting Underwriter.
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No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default under this Agreement and
the applicable Terms Agreement.
In the event of any such default which does not result in a
termination of the applicable Terms Agreement, either you or the Company shall
have the right to postpone the Closing Time for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
the Prospectus or in any other documents or arrangements.
Section 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed c/o Merrill ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇▇ ▇▇▇▇▇ World Headquarters, North Tower,
World Financial Center, New York, New York 10281-1305, attention of Mr. Tjarda
van ▇. ▇▇▇▇▇▇▇, Managing Director; and notices to the Company shall be
directed to it at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇,
attention of ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President and Chief Executive Officer.
Section 12. Parties. This Agreement and the applicable Terms
Agreement shall each inure to the benefit of and be binding upon you and the
Company, the Operating Partnership and any Underwriter who becomes a party to
such Terms Agreement, and their respective successors. Nothing expressed or
mentioned in this Agreement or the applicable Terms Agreement is intended or
shall be construed to give any person, firm or corporation, other than those
referred to in Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or such Terms Agreement or any provision herein or therein contained. This
Agreement and the applicable Terms Agreement and all conditions and provisions
hereof and thereof are intended to be for the sole and exclusive benefit of the
parties hereto and thereto and their respective successors and said controlling
persons and officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No purchaser of
Underwritten Securities from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
Section 13. Governing Law and Time. This Agreement and the
applicable Terms Agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to agreements made and to be
performed in said State. Specified times of day refer to New York City time.
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Section 14. Counterparts. This Agreement and the applicable Terms
Agreement may be executed in one or more counterparts, and if executed in more
than one counterpart the executed counterparts shall constitute a single
instrument.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts will become a binding
agreement between you, the Company and the Operating Partnership in accordance
with its terms.
Very truly yours,
SUMMIT PROPERTIES INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
SUMMIT PROPERTIES PARTNERSHIP, L.P.
By: Summit Properties Inc.
(its general partner)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
CONFIRMED AND ACCEPTED,
as of the date first
above written:
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/ Tjarda van ▇. ▇▇▇▇▇▇▇
---------------------------------
Authorized Signatory
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