EXHIBIT 1
ARCHSTONE - XXXXX OPERATING TRUST
5.625% Notes Due 2014
Underwriting Agreement
July 28, 0000
Xxxx xx Xxxxxxx Securities LLC
Citigroup Global Markets Inc.
As Representatives of the several Underwriters
c/o Banc of America Securities LLC
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
and
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Ladies and Gentlemen:
Archstone - Xxxxx Operating Trust, a real estate investment trust
organized under the laws of the State of Maryland (the "Company"), proposes to
issue and sell to the several underwriters named in Schedule I hereto (the
"Underwriters"), the principal amount of its debt securities identified in
Schedule I hereto (the "Securities"), to be issued under the indenture specified
in Schedule I hereto (the "Indenture") between the Company and the Trustee
identified in such Schedule (the "Trustee").
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement (File Number 333-114394) on Form S-3, relating to certain debt
securities (the "Shelf Securities") to be issued from time to time by the
Company. The Company also has filed with, or proposes to file with, the
Commission pursuant to Rule 424 under the Securities Act a prospectus supplement
specifically relating to the Securities. The registration statement as amended
to the date of this Agreement is hereinafter referred to as the "Registration
Statement" and the related prospectus covering the Shelf Securities in the form
used to confirm sales of the Securities is hereinafter referred to as the "Basic
Prospectus." The Basic Prospectus as supplemented by the prospectus supplement
specifically relating to the Securities in the form used to confirm sales of the
Securities is hereinafter referred to as the "Prospectus." Any reference in this
Agreement to the Registration Statement, the Basic Prospectus, or the Prospectus
shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Securities Act which were
filed under the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Exchange Act") or
under the Securities Act on or before the date of this Agreement or the date of
the Basic Prospectus or the Prospectus, as the case may be; and any reference to
"amend", "amendment" or "supplement" with respect to the Registration Statement,
the Basic Prospectus or the Prospectus shall be deemed to refer to and include
any documents filed under the Exchange Act after the date of this Agreement, or
the date of the Basic Prospectus or the Prospectus, as the case may be, which
are deemed to be incorporated by reference therein.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities to the
Underwriters as hereinafter provided, and the Underwriters, on the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agree to purchase from the Company the principal amount of
Securities set forth in Schedule I hereto at the purchase price set forth in
Schedule I hereto plus accrued interest, if any, from the date specified in
Schedule I hereto to the date of payment and delivery.
2. The Company understands that the Underwriters intend (i) to make
a public offering of the Securities and (ii) initially to offer the Securities
upon the terms set forth in the Prospectus.
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3. Payment for the Securities shall be made to the Company or to its
order in immediately available funds on the date and at the time and place set
forth in Schedule I hereto (or at such other time and place on the same or such
other date, not later than the third Business Day thereafter, as the
Underwriters and the Company may agree in writing). Such payment will be made
upon delivery to the Underwriters of the Securities registered in such names and
in such denominations as the Underwriters shall request not less than two full
Business Days prior to the date of delivery, with any transfer taxes payable in
connection with the transfer to the Underwriters duly paid by the Company. As
used herein, the term "Business Day" means any day other than a Saturday or
Sunday or a day on which banks are permitted or required to be closed in New
York City. The time and date of such payment and delivery with respect to the
Securities are referred to herein as the "Closing Date." The certificates for
the Securities will be made available for inspection and packaging by the
Underwriters by 1:00 P.M. on the Business Day prior to the Closing Date at such
place in New York City as the Underwriters and the Company shall agree.
4. The Company represents and warrants to the Underwriters that:
(a) the Registration Statement has been declared effective by the
Commission under the Securities Act; no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceeding for that purpose
has been instituted or, to the knowledge of the Company, threatened by the
Commission; and the Registration Statement and Prospectus (as amended or
supplemented, if applicable) comply, or will comply, as the case may be, in all
material respects with the Securities Act and the Trust Indenture Act of 1939,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Trust Indenture Act"), and do not and will not, as of the
applicable effective date as to the Registration Statement and any amendment
thereto and as of the date of the Prospectus and any amendment or supplement
thereto contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, and in the case of the Prospectus, in the light of the circumstances
under which they were made, not misleading, and the Prospectus, as amended or
supplemented at the Closing Date, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; except that the foregoing representations and warranties
shall not apply to (i) that part of the Registration Statement which constitutes
the Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the
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Trustee, and (ii) statements or omissions in the Registration Statement or the
Prospectus made in reliance upon and in conformity with information relating to
the Underwriters furnished to the Company in writing by the Underwriters
expressly for use therein, it being agreed and understood that the only such
information is that described as such in the second paragraph of Section 7
hereof;
(b) the documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects to the
requirements of the Exchange Act or the Securities Act, as applicable, and none
of such documents contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and any further
documents so filed and incorporated by reference in the Prospectus, when such
documents are filed with the Commission, will conform in all material respects
to the requirements of the Exchange Act, as applicable, and will not contain an
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading;
(c) KPMG LLP, who has certified the financial statements filed with
the Commission as part of the Registration Statement and the Prospectus or
incorporated by reference therein, are independent public accountants as
required by the Securities Act;
(d) the financial statements and the related notes thereto, included
or incorporated by reference in the Registration Statement and the Prospectus,
present fairly the consolidated financial position of the Company and its
consolidated subsidiaries and the entities which were acquired by or merged into
the Company (the "Company Group") as of the dates indicated and the results of
their operations and the changes in their consolidated cash flows for the period
specified; the financial statements with respect to the properties acquired by
the Company or the entities which were acquired by or merged into the Company,
together with related notes and schedules as set forth or incorporated by
reference in the Registration Statement or the Prospectus, present fairly the
financial position and the results of operations of such properties at the
indicated dates and for the indicated periods; the foregoing financial
statements have been prepared in conformity with generally accepted accounting
principles ("GAAP") applied on a consistent basis, and the supporting schedules
included or incorporated by reference in the Registration Statement or the
Prospectus present fairly the information required to be stated therein; the
financial information and statistical data included or incorporated by reference
in the Registration Statement or the Prospectus present fairly the information
shown therein and
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have been compiled on a basis consistent with the financial statements presented
therein; and the pro forma financial information and the related notes thereto,
included or incorporated by reference in the Registration Statement and the
Prospectus has been prepared in accordance with the applicable requirements of
the Securities Act and the Exchange Act, as applicable;
(e) since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, business prospects, management,
financial position, shareholders' equity or results of operations of the Company
and its Subsidiaries (as defined below), taken as a whole (a "Material Adverse
Effect"), otherwise than as set forth or contemplated in the Prospectus; and
except as set forth or contemplated in the Prospectus neither the Company nor
any of its Subsidiaries has entered into any transaction or agreement (whether
or not in the ordinary course of business) material to the Company and its
Subsidiaries taken as a whole;
(f) the Company has been duly organized and is validly existing as a
real estate investment trust of unlimited duration with transferable shares of
beneficial interest in good standing under the laws of the State of Maryland,
with power and authority (trust or other) to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified for the
transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any business, so
as to require such qualification, other than where the failure to be so
qualified or in good standing would not have a Material Adverse Effect;
(g) each of the Company's subsidiaries (within the meaning of the
Securities Act) is listed in Schedule II hereto (the "Subsidiaries") and has
been duly incorporated or organized and is validly existing as a corporation,
limited liability company or limited partnership, as the case may be, under the
laws of its jurisdiction of incorporation, formation or organization, with power
and authority (corporate or other) to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified as a
foreign entity or limited partnership, as the case may be, for the transaction
of business and is in good standing under the laws of each jurisdiction in which
it owns or leases properties or conducts any business so as to require such
qualification, other than where the failure to be so qualified or in good
standing would not have a Material Adverse Effect; and all the outstanding
equity securities of each subsidiary of the Company have been duly authorized
and validly issued, are fully-paid and non-assessable, and (except for general
partnership
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interests or in the case of foreign Subsidiaries, for directors' qualifying
shares) are owned by the Company, directly or indirectly, free and clear of all
liens, encumbrances, security interests and claims;
(h) neither the Company nor any of its Subsidiaries is party to any
joint venture with any other entity, except as described or incorporated by
reference in the Prospectus;
(i) this Agreement has been duly authorized, executed and delivered
by the Company and constitutes the valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and the effect of general principles of equity, and except as rights to
indemnity and contribution hereunder may be limited by applicable law;
(j) the Securities have been duly authorized, and, when issued,
authenticated and delivered pursuant to this Agreement and the Indenture, will
have been duly executed, authenticated, issued and delivered and will constitute
valid and binding obligations of the Company entitled to the benefits provided
by the Indenture and enforceable against the Company in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and the effect of general principles of equity; the Base
Indenture has been duly authorized, executed and delivered by the Company and
constitutes a valid and binding agreement enforceable against the Company in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and the effect of general principles
of equity; the First Supplemental Indenture has been duly authorized, executed
and delivered by the Company and constitutes a valid and binding agreement
enforceable against the Company in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and the effect of general principles of equity; the Second Supplemental
Indenture has been duly authorized, and, when duly executed and delivered by the
Company, will constitute a valid and binding agreement enforceable against the
Company in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and the effect of
general principles of equity; the Indenture has been duly qualified
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under the Trust Indenture Act; and the Securities and the Indenture will conform
to the descriptions thereof in the Prospectus in all material respects;
(k) neither the Company nor any of the Subsidiaries is, nor with the
giving of notice or lapse of time or both would be, in violation of or in
default under, (i) its Amended and Restated Declaration of Trust or By-Laws, or
(ii) joint venture agreement, partnership agreement or other governing
instruments or any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its Subsidiaries is a
party or by which it or any of them or any of their respective properties is
bound, except in the case of clause (ii) for violations and defaults which
individually and in the aggregate are not material to the Company and its
Subsidiaries taken as a whole or to the holders of the Securities; the issue and
sale of the Securities and the performance by the Company of all of the
provisions of its obligations under the Securities, the Indenture and this
Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other material agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which the Company or any of
its Subsidiaries is bound or to which any of the property or assets of the
Company or any of its Subsidiaries is subject, nor will any such action result
in any violation of the provisions of the Amended and Restated Declaration of
Trust or the By-Laws of the Company or any applicable law or statute or any
order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company, its Subsidiaries or any of their respective
properties; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Securities or the consummation by the
Company of the transactions contemplated by this Agreement or the Indenture,
except such consents, approvals, authorizations, registrations or qualifications
as have been obtained under the Securities Act, the Trust Indenture Act and as
may be required under state securities or Blue Sky Laws in connection with the
purchase and distribution of the Securities by the Underwriters or consents, the
failure of which to obtain would not have a Material Adverse Effect or a
material adverse effect on the consummation of the transactions contemplated by
this Agreement or the Indenture or on the validity and enforceability of the
Securities and the Indenture;
(l) the Company is not 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 (the "Investment Company Act");
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(m) other than as set forth or contemplated in the Prospectus, there
are no legal or governmental proceedings pending or, to the knowledge of the
Company, threatened to which the Company or any of its Subsidiaries is or may be
a party or to which any property of the Company or any of its Subsidiaries is or
may be the subject which, if determined adversely to the Company or any of its
Subsidiaries, could individually or in the aggregate reasonably be expected to
have a Material Adverse Effect and, to the best of the Company's knowledge, no
such proceedings are threatened or contemplated by governmental authorities or
threatened by others; and there are no contracts or other documents of a
character required to be filed as an exhibit to the Registration Statement or
required to be described in the Registration Statement or the Prospectus which
are not filed or described as required;
(n) the Company's authorized, issued and outstanding shares of
beneficial interest is as set forth or incorporated by reference in the
Prospectus; and all of the issued shares of beneficial interest have been duly
and validly authorized and issued, are fully paid and non-assessable;
(o) the Company and each of its Subsidiaries have good and
marketable title in fee simple to all real property described in the Prospectus
as owned by them and good and marketable title to all personal property owned by
them, in each case free and clear of all liens, encumbrances and defects except
such as are described in the Prospectus or such as do not materially affect the
value of such property and do not interfere with the use made and proposed to be
made of such property by the Company and its Subsidiaries; and any real property
and buildings held under lease by the Company and its Subsidiaries and described
in the Prospectus are held by them under valid and subsisting 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 its
Subsidiaries;
(p) the Company and its Subsidiaries taken as a whole carry, or are
covered by, insurance in such amounts and covering such risks as is adequate for
the conduct of their business and the value of their properties;
(q) for the fiscal year ended December 31, 1996 through the period
ending on and including October 29, 2001, the Company met the requirements for
qualification as a real estate investment trust under Sections 856 through 860
of the Internal Revenue Code of 1986, as amended (the "Code");
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(r) for the period beginning October 30, 2001 and ending on and
including the date hereof, the Company has operated in a manner to be classified
as a partnership, and not as an association or partnership taxable as a
corporation, for federal income tax purposes;
(s) all material Tax returns required to be filed by the Company
Group have been filed and all such returns are true, complete, and correct in
all material respects. All material Taxes that are due or claimed to be due from
the Company Group have been paid other than those (i) currently payable without
penalty or interest or (ii) being contested in good faith and by appropriate
proceedings and for which, in the case of both clauses (i) and (ii), adequate
reserves have been established on the books and records of the Company Group in
accordance with GAAP. There are no proposed material Tax assessments against the
Company Group. To the best knowledge and belief of the Company, the accruals and
reserves on the books and records of the Company Group in respect of any
material Tax liability for any Taxable period which liability has not been
finally determined are adequate to meet any assessments of Tax for any such
period. For purposes of this Agreement, the term "Tax" and "Taxes" shall mean
all federal, state, local and foreign taxes, and other assessments of a similar
nature (whether imposed directly or through withholding), including any
interest, additions to tax, or penalties applicable thereto;
(t) each of the Company and its Subsidiaries owns, possesses or has
obtained all licenses, permits, certificates, consents, orders, approvals and
other authorizations from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities (including foreign
regulatory agencies), all self-regulatory organizations and all courts and other
tribunals, domestic or foreign, necessary to own or lease, as the case may be,
and to operate its properties and to carry on its business as conducted as of
the date hereof, except in each case where the failure to obtain licenses,
permits, certificates, consents, orders, approvals and other authorizations, or
to make all declarations and filings, would not have a Material Adverse Effect,
and none of the Company or any of its Subsidiaries has received any notice of
any proceeding relating to revocation or modification of any such license,
permit, certificate, consent, order, approval or other authorization, except as
described in the Registration Statement and the Prospectus and except, in each
case, where such revocation or modification would not have a Material Adverse
Effect; and the Company and each of its Subsidiaries are in material compliance
with all laws, rules and regulations relating to the conduct of their respective
businesses as conducted as of the date hereof, except where noncompliance with
such laws or regulations would not have a Material Adverse Effect;
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(u) except as disclosed in the Prospectus, the Company and its
Subsidiaries (i) are in compliance with any and all applicable foreign, federal,
state and local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), (ii) have received all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their business, (iii) are in compliance with all
terms and conditions of any such permit, license or approval and (iv) have no
knowledge of the unlawful presence of any hazardous substances, hazardous
materials, toxic substances or waste materials on any of the properties owned by
them, or of any unlawful spills, releases, discharges or disposal of such
hazardous materials that have occurred or are presently occurring off such
properties as a result of any construction on or operation and use of such
properties, except where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure to comply with
the terms and conditions of such permits, licenses or approvals or unlawful
presence of hazardous materials or occurrence would not, singly or in the
aggregate, result in a Material Adverse Effect;
(v) the mortgages and deeds of trust encumbering the properties and
assets described in the Prospectus (i) are not convertible and neither the
Company nor any of its Subsidiaries holds a participating interest therein, and
(ii) are not cross-defaulted or cross-collateralized to any property not owned
by the Company or any of its Subsidiaries;
(w) subsequent to the respective dates as of which information is
given in the Prospectus, (i) the Company has not purchased any of its
outstanding shares of beneficial interest (other than the redemption of common
units in accordance with the terms of the Company's Amended and Restated
Declaration of Trust and the redemption of the Series D Preferred Units), nor
declared, paid or otherwise made any dividend or distribution of any kind on its
shares of beneficial interest other than regular periodic dividends on its
shares of beneficial interest (preferred or common); and (ii) there has not been
any material change in the shares of beneficial interest, short-term debt or
long-term debt of the Company, except in either case as described in or
contemplated by the Prospectus; and
(x) the Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably expected to,
cause or result in stabilization or manipulation of the price of the Securities,
and the Company has not distributed and has agreed not to distribute any
prospectus or other offering material in connection with the offering and sale
of the Securities other than the
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Prospectus, any preliminary prospectus filed with the Commission or other
material permitted by the Securities Act.
5. The Company covenants and agrees with the Underwriters as
follows:
(a) to file the Prospectus in a form approved by the Underwriters
pursuant to Rule 424 under the Securities Act not later than the Commission's
close of business on the second Business Day following the date of determination
of the offering price of the Securities;
(b) to deliver to the Underwriters and counsel for the Underwriters,
at the expense of the Company, a signed copy of the Registration Statement (as
originally filed) and each amendment thereto, in each case including exhibits
and documents incorporated by reference therein and, during the period mentioned
in paragraph (e) below, to the Underwriters as many copies of the Prospectus
(including all amendments and supplements thereto) and documents incorporated by
reference therein as the Underwriters may reasonably request;
(c) from the date hereof and prior to the Closing Date, to furnish
to the Underwriters a copy of any proposed amendment or supplement to the
Registration Statement or the Prospectus, for review by the Underwriters, and
not to file any such proposed amendment or supplement to which the Underwriters
reasonably objects;
(d) to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as
the delivery of a prospectus is required in connection with the offering or sale
of the Securities, and during such same period, to advise the Underwriters
promptly, and to confirm such advice in writing, (i) when any amendment to the
Registration Statement shall have become effective, (ii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for any additional information, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation or threatening of any proceeding for
that purpose, and (iv) of the receipt by the Company of any notification with
respect to any suspension of the qualification of the Securities for offer and
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose; and to use its best efforts to prevent the issuance
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of any such stop order or notification and, if issued, to obtain as soon as
possible the withdrawal thereof;
(e) if, during such period after the first date of the public
offering of the Securities as in the reasonable opinion of counsel for the
Underwriters a prospectus relating to the Securities is required by law to be
delivered in connection with sales by an Underwriter or dealer, any event shall
occur as a result of which it is necessary to amend or supplement the Prospectus
in order to make the statements therein, in the light of the circumstances when
the Prospectus is delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Prospectus to comply with law, and such
amendment or supplement, reasonably satisfactory in all respects to the
Underwriters, forthwith to prepare and furnish, at the expense of the Company,
to the Underwriters and to the dealers (whose names and addresses the
Underwriters will furnish to the Company) to which Securities may have been sold
by you and to any other dealers upon request, such amendments or supplements to
the Prospectus as may be necessary so that the statements in the Prospectus as
so amended or supplemented will not, in the light of the circumstances existing
at the time that the Prospectus is delivered to a purchaser, be misleading or so
that the Prospectus will comply with law;
(f) to endeavor to qualify the Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Underwriters shall
reasonably request and to continue such qualification in effect so long as
reasonably required for distribution of the Securities and to pay all fees and
expenses (including fees and disbursements of counsel to the Underwriters)
reasonably incurred in connection with such qualification and in connection with
the determination of the eligibility of the Securities for investment under the
laws of such jurisdictions as the Underwriters may designate; provided that the
Company shall not be required to file a general consent to service of process in
any jurisdiction or to qualify to do business in any jurisdiction where it is
not so qualified;
(g) to make generally available to its security holders and to the
Underwriters as soon as practicable an earnings statement covering a period of
at least twelve months beginning with the first fiscal quarter of the Company
occurring after the effective date of the Registration Statement, which shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 of
the Commission promulgated thereunder;
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(h) to operate in a manner to continue to be classified as a
partnership, and not as an association or partnership taxable as a corporation,
for federal income tax purposes;
(i) so long as the Securities are outstanding, to furnish to the
Underwriters copies of all reports or other communications (financial or other)
furnished to holders of Securities, and copies of any reports and financial
statements furnished to or filed with the Commission or any national securities
exchange;
(j) during the period beginning on the date hereof and continuing to
and including the Business Day following the Closing Date, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of, or guaranteed
by, the Company which are substantially similar to the Securities without the
Underwriters' prior written consent;
(k) to use the net proceeds of the offering of the Securities in the
manner specified in the Prospectus under "Use of Proceeds;"
(l) as long as any Securities are outstanding, not to be or become
an open-end investment trust, unit investment trust, closed-end investment
company or face-amount certificate company that is or is required to be
registered under the Investment Company Act; and
(m) to pay all costs and expenses incident to the performance of its
obligations hereunder, including without limiting the generality of the
foregoing, all costs and expenses (i) incident to the preparation, issuance,
execution, authentication and delivery of the Securities, including any expenses
of the Trustee, (ii) incident to the preparation, printing and filing under the
Securities Act of the Registration Statement and the Prospectus (including in
each case all exhibits, amendments and supplements thereto), (iii) incurred in
connection with the registration or qualification and determination of
eligibility for investment of the Securities under the laws of such
jurisdictions as the Underwriters may designate (including reasonable fees of
counsel for the Underwriters and their disbursements), (iv) related to any
filing with National Association of Securities Dealers, Inc. in respect of the
Securities, (v) in connection with the printing (including word processing and
duplication costs) and delivery of this Agreement, the Indenture, the
Preliminary and Supplemental Blue Sky Memoranda and any Legal Investment Survey
and the furnishing to the Underwriters and dealers of copies of the Registration
Statement and the Prospectus, including mailing and shipping, as herein provided
and (vi) payable to rating agencies in connection with the rating of the
Securities.
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6. The obligations of the Underwriters hereunder shall be subject to
the following conditions:
(a) the representations and warranties of the Company contained
herein are true and correct as of the date hereof and as of the Closing Date as
if made on and as of the date hereof and of the Closing Date, and the Company
shall have complied with all agreements and all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date;
(b) the Prospectus shall have been filed with the Commission
pursuant to Rule 424 within the applicable time period prescribed for such
filing by the rules and regulations under the Securities Act; no stop order
suspending the effectiveness of the Registration Statement shall be in effect,
and no proceedings for such purpose shall be pending before or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the reasonable satisfaction of the
Underwriters;
(c) subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any downgrading, nor
shall any notice have been given of (i) any intended or potential downgrading or
(ii) any review or possible change that does not indicate an improvement, in the
rating accorded any securities of or guaranteed by the Company by any
"nationally recognized statistical rating organization", as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is given in
the Prospectus there shall not have been any material change in the shares of
beneficial interest, short-term debt or long-term debt of the Company or any
Material Adverse Effect, otherwise than as set forth or contemplated in the
Prospectus, the effect of which in the judgment of the Underwriters makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Securities on the terms and in the manner contemplated in the Prospectus;
(e) the Underwriters shall have received on and as of the Closing
Date a certificate of two officers of the Company, at least one of whom is a
Chairman, Chief Executive Officer, Chief Financial Officer or Vice President of
the Company satisfactory to the Underwriters, to the effect set forth in
subsections (a) through (c) of this Section and to the further effect that there
has not occurred any
14
Material Adverse Effect from that set forth or contemplated in the Registration
Statement;
(f) Mayer, Brown, Xxxx & Maw LLP, counsel for the Company, shall
have furnished to the Underwriters their written opinion, dated the Closing
Date, in form and substance satisfactory to the Underwriters, to the effect
that:
(i) the Company has been duly organized and is validly existing as a
real estate investment trust in good standing under the laws of the
State of Maryland, with power and authority (trust or other) to own
its properties and conduct its business as described in the
Prospectus as then amended or supplemented;
(ii) the Company has been duly qualified for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification, other than where the
failure to be so qualified or in good standing would not have a
Material Adverse Effect;
(iii) [reserved]
(iv) other than as set forth or contemplated in the Prospectus, to
such counsel's knowledge, there are no legal or governmental
proceedings pending or threatened to which the Company or any of its
Subsidiaries is or may be a party or to which any property of the
Company or its Subsidiaries is or may be the subject which, if
determined adversely to the Company or such Subsidiaries, could
individually or in the aggregate reasonably be expected to have a
Material Adverse Effect; to such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others; and such counsel does not know
of any amendment to the Registration Statement required to be filed
or of any contracts or other documents of a character required to be
filed as an exhibit to the Registration Statement or required to be
incorporated by reference into the Prospectus or required to be
described in the Registration Statement or the Prospectus which are
not filed or incorporated by reference or described as required;
15
(v) this Agreement has been duly authorized, executed and delivered
by the Company and is a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except
to the extent that enforcement thereof may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium and similar laws
now or hereafter in effect relating to creditors' rights generally
and (ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity)
and except as rights to indemnity and contribution hereunder may be
limited by applicable law;
(vi) the Securities have been duly authorized, executed and
delivered by the Company and, when duly authenticated in accordance
with the terms of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement, will
constitute valid and binding obligations of the Company entitled to
the benefits provided by the Indenture and enforceable against the
Company in accordance with their terms, except to the extent that
enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium and similar laws now or hereafter in
effect relating to creditors' rights generally and (ii) general
principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity);
(vii) the Base Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding
agreement of the Company enforceable against the Company in
accordance with its terms, except to the extent enforcement thereof
may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium and similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding
at law or in equity);
(viii) the First Supplemental Indenture has been duly authorized,
executed and delivered by the Company and constitutes a valid and
binding agreement of the Company enforceable against the Company in
accordance with its terms, except to the extent enforcement thereof
may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium and similar laws now or hereafter in effect relating to
creditors'
16
rights generally and (ii) general principles of equity (regardless
of whether enforceability is considered in a proceeding at law or in
equity);
(ix) the Second Supplemental Indenture has been duly authorized,
and, when duly executed and delivered by the Company, will
constitute a valid and binding agreement enforceable against the
Company in accordance with its terms, except to the extent
enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium and similar laws now or hereafter in
effect relating to creditors' rights generally and (ii) general
principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity);
(x) the Indenture has been duly qualified under the Trust Indenture
Act;
(xi) the Indenture and the Securities conform in all material
respects to the descriptions thereof in the Registration Statement
and the Prospectus;
(xii) the Company's authorized, issued and outstanding shares of
beneficial interest is as set forth or incorporated by reference in
the Prospectus; and all of the issued shares of beneficial interest
have been duly and validly authorized and issued, are fully paid and
non-assessable;
(xiii) neither the Company nor any of its Subsidiaries is, nor with
the giving of notice or lapse of time or both would be, in violation
of or in default under, (i) its Amended and Restated Declaration of
Trust, By-Laws, partnership agreement or other governing instruments
or (ii) any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument known to such counsel to which the
Company or any of its Subsidiaries is a party or by which it or any
of them or any of their respective properties is bound, except for
violations and defaults (other than violations or defaults with
respect to the Amended and Restated Declaration of Trust and Bylaws
of the Company) which individually and in the aggregate are not
material to the Company and its Subsidiaries taken as a whole or to
the holders of the Securities; the issue and sale of the Securities
and the performance
17
by the Company of its obligations under the Securities, the
Indenture and this Agreement and the consummation of the
transactions herein and therein contemplated will not (i) conflict
with or result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other material agreement or instrument known to
such counsel to which the Company or any of its Subsidiaries is a
party or by which the Company or any of its Subsidiaries is bound or
to which any of the property or assets of the Company or any of its
Subsidiaries is subject, (ii) nor will any such action result in any
violation of the provisions of the Amended and Restated Declaration
of Trust, or the By-Laws of the Company or any applicable law or
statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company,
its Subsidiaries or any of their respective properties, the
violation of which would have a Material Adverse Effect or a
material adverse effect on the consummation of the transactions
contemplated by this Agreement or the Indenture or on the validity
and enforceability of the Securities and the Indenture;
(xiv) no consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is
required for the issue and sale of the Securities or the
consummation of the other transactions contemplated by this
Agreement or the Indenture, except such consents, approvals,
authorizations, registrations or qualifications as have been
obtained under the Securities Act and the Trust Indenture Act and as
may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Securities by
the Underwriters or consents, the failure of which to obtain would
not have a Material Adverse Effect or a material adverse effect on
the consummation of the transactions contemplated by this Agreement
or the Indenture or on the validity and enforceability of the
Securities and the Indenture;
(xv) the statements (A) contained in the Basic Prospectus under
"Description of Debt Securities" and in the prospectus supplement
specifically relating to the Securities under "Description of
Notes," (B) incorporated by reference in the Prospectus from Item 3
of Part 1 of the Company's Annual Report on Form 10-K for the year
ended December 31, 2003, and (C) contained in the Registration
Statement in Item 15 insofar as such statements constitute a summary
of the
18
legal matters, documents or proceedings referred to therein, are
true and correct in all material respects;
(xvi) (A) the Company was qualified to be taxed as a real estate
investment trust pursuant to Sections 856 through 860 of the Code,
for the fiscal year ended December 31, 1996 through the period
ending on and including October 29, 2001, (B) Archstone - Xxxxx
Trust qualified to be taxed as a real estate investment trust
pursuant to Sections 856 through 860 of the Code, as amended, for
the fiscal year ended December 31, 2003, (C) the Company was
classified as a partnership, and not as an association or
partnership taxable as a corporation, for federal income tax
purposes, from October 30, 2001, through the date hereof, and (D)
based on the representation that the Company will continue to
satisfy the "90% qualifying income" test under Section 7704 of the
Code, the Company will be classified for federal income tax purposes
as a partnership, and not as an association or partnership taxable
as a corporation; and the Company is not an open-end investment
company, unit investment trust, closed-end investment company or
face-amount certificate company that is or is required to be
registered under the Investment Company Act;
(xvii) the investments of the Company described in the Prospectus
are permitted investments under the Amended and Restated Declaration
of Trust of the Company;
(xviii) the Registration Statement is effective under the Securities
Act and no stop order suspending the effectiveness of the
Registration Statement has been issued under the Securities Act or
proceeding therefor initiated or, to the best of such counsel's
knowledge and information, threatened by the Commission; and
(xix) such counsel (A) is of the opinion that each document
incorporated by reference in the Registration Statement and the
Prospectus (except for the financial statements, supporting
schedules and other financial data included therein or omitted
therefrom and except for the Form T-1 as to which such counsel need
express no opinion) when filed with the Commission complied as to
form in all material respects with the Exchange Act (B) believes
that (except for the financial statements, supporting schedules and
other financial data included therein or omitted therefrom and
except for the Form T-1 as to which
19
such counsel need express no belief) each part of the Registration
Statement (including the documents incorporated by reference
therein) filed with the Commission pursuant to the Securities Act
relating to the Securities, when such part became effective, did not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (C) is of the opinion that the
Registration Statement and the Prospectus and any amendments and
supplements thereto (except for the financial statements, supporting
schedules and other financial data included therein or omitted
therefrom and except for the Form T-1 as to which such counsel need
express no opinion) comply as to form in all material respects with
the requirements of the Securities Act and the Trust Indenture Act
and (D) believes that (except for the financial statements,
supporting schedules and other financial data included therein or
omitted therefrom and except for the Form T-1 as to which such
counsel need express no belief) the Registration Statement and the
Prospectus, as of their respective dates and on the date of this
Agreement, did not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein, and in the case of the
Prospectus, in the light of the circumstances under which they were
made, not misleading, and that the Prospectus as amended or
supplemented, if applicable, on the Closing Date does not contain
any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
In rendering such opinions, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States and
the States of Illinois, Maryland and New York, to the extent such counsel deems
proper and to the extent specified in such opinion, if at all, upon an opinion
or opinions (in form and substance reasonably satisfactory to Underwriters'
counsel) of other counsel reasonably acceptable to the Underwriters' counsel,
familiar with the applicable laws; and (B) as to matters of fact, to the extent
such counsel deems proper, on certificates of responsible officers of the
Company and certificates or other written statements of officials of
jurisdictions having custody of documents respecting the corporate existence or
good standing of the Company. The opinion of such counsel for the Company shall
state that the opinion of any such other counsel or such certificates is in form
satisfactory to such counsel and, in such counsel's opinion, the Underwriters
and they are justified in relying thereon. With respect to
20
the matters to be covered in subparagraph (xvi) above counsel may state their
opinion and belief is based upon their participation in the preparation of the
Registration Statement and the Prospectus and any amendment or supplement
thereto but is without independent check or verification except as specified. In
rendering the opinions contained in (xiii), such opinions may be based upon (a)
the Code and the rules and regulations promulgated thereunder, (b) Maryland law
existing and applicable to the Company, (c) facts and other matters set forth in
the Prospectus, (d) the provisions of the Amended and Restated Declaration of
Trust of the Company, and (e) certain statements and representations made by the
Company to Mayer, Brown, Xxxx & Maw LLP provided that such statements and
representations are also set forth in a certificate to the Underwriters.
(g) Xxxxxxxx Xxxxxx, Executive Vice President and General Counsel of
the Company, shall have furnished to the Underwriters her written opinion, dated
the Closing Date, in form and substance satisfactory to the Underwriters, to the
effect that
(i) other than as set forth or contemplated in the Prospectus, there
are no legal or governmental proceedings pending or, to the best of
her knowledge, threatened to which the Company or any of its
Subsidiaries is or may be a party or to which any property of the
Company or its Subsidiaries is or may be the subject which, if
determined adversely to the Company or such Subsidiaries, could
individually or in the aggregate reasonably be expected to have a
Material Adverse Effect; and
(ii) to the best of her knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened
by others; she does not know of any amendment to the Registration
Statement required to be filed; and there are no contracts or other
documents of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by reference
into the Prospectus or required to be described in the Registration
Statement or the Prospectus which are not filed or incorporated by
reference or described as required;
(h) on the date of execution of this Agreement and also on the
Closing Date, KPMG LLP shall have furnished to you letters, dated such
respective dates of delivery, in form and substance reasonably satisfactory to
the Underwriters, containing statements and information of the type customarily
included in
21
accountants "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statement and the Prospectus;
(i) [reserved];
(j) the Underwriters shall have received on and as of the Closing
Date an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to the
Underwriters, with respect to the validity of the Indenture and the Securities,
the Registration Statement, the Prospectus and other related matters as the
Underwriters may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them to pass
upon such matters;
(k) the Company's Chief Executive Officer and Chief Financial
Officer certifications which are required to accompany the Company's quarterly
report for the first quarter ended March 31, 2004 when filed with the Commission
pursuant to Section 906 of the Xxxxxxxx-Xxxxx Act of 2002 pursuant to 18 U.S.C.
Section 1350 shall have been filed, and copies thereof shall have been provided
to the Representatives; and
(l) on or prior to the Closing Date, the Company shall have
furnished to the Underwriters such further certificates and documents as the
Underwriters shall reasonably request.
7. The Company agrees to indemnify and hold harmless the
Underwriters and each person, if any, who controls the Underwriters within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities
(including without limitation the legal fees and other expenses incurred in
connection with any suit, action or proceeding or any claim asserted) arising
out of or caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or arising out of or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein, in the case of
the Prospectus or any preliminary prospectus, in the light of the circumstances
under which they were made, not misleading, except insofar as such losses,
claims, damages or liabilities arising out of or are caused by any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with information relating to the
22
Underwriters furnished to the Company in writing by the Underwriters expressly
for use therein, it being agreed and understood that the only such information
is that which is described as such in the second paragraph of this section;
provided, that the foregoing indemnity with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter (or to the benefit
of the person controlling such Underwriter) from whom the person asserting any
such losses, claims, damages or liabilities purchased Securities if such untrue
statement or omission or alleged untrue statement or omission made in such
preliminary prospectus is eliminated or remedied in the Prospectus (as amended
or supplemented if the Company shall have previously furnished any amendments or
supplements thereto to such Underwriters) and, if required by law, a copy of the
Prospectus (as so amended or supplemented but excluding any material
incorporated by reference) shall not have been furnished to such person at or
prior to the written confirmation of the sale of such Securities to such person.
The Underwriters agree, severally and not jointly, to indemnify and
hold harmless the Company, its trustees, its officers who sign the Registration
Statement and each person who controls the Company within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act, to the same extent
as the foregoing indemnity from the Company to the Underwriters, but only with
reference to information relating to the Underwriters furnished to the Company
in writing by the Underwriters expressly for use in the Registration Statement,
the Prospectus, any amendment or supplement thereto, or any preliminary
prospectus. For purposes of this Section 7 and Section 4(a), the only written
information furnished by the Underwriters to the Company expressly for use in
the Registration Statement and the Prospectus is the information in the fourth,
sixth, seventh, eighth and eleventh paragraphs (other than with respect to the
Company) under the caption "Underwriting" in the prospectus supplement.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the
23
expense of such Indemnified Person unless (i) the Indemnifying Person and the
Indemnified Person shall have mutually agreed to the contrary, (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person or (iii) the named parties in
any such proceeding (including any impleaded parties) include both the
Indemnifying Person and the Indemnified Person and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the Indemnifying Person
shall not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm for the Underwriters and such control persons of the Underwriters
shall be designated in writing by the Representatives and any such separate firm
for the Company, its trustees, its officers who sign the Registration Statement
and such control persons of the Company or authorized representatives shall be
designated in writing by the Company. The Indemnifying Person shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Person agrees to indemnify any Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested an Indemnifying Person to reimburse the Indemnified
Person for fees and expenses of counsel as contemplated by the third sentence of
this paragraph, the Indemnifying Person agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such Indemnifying
Person of the aforesaid request and (ii) such Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to the
date of such settlement; provided that if it is ultimately determined that an
Indemnified Person was not entitled to indemnification hereunder, such person
shall be responsible for repaying or reimbursing such amounts to the
Indemnifying Person. No Indemnifying Person shall, without the prior written
consent of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement includes an unconditional release of
such Indemnified Person from all liability on claims that are the subject matter
of such proceeding.
If the indemnification provided for in the first and second
paragraphs of this Section 7 is unavailable to an Indemnified Person in respect
of any losses,
24
claims, damages or liabilities referred to therein, then each Indemnifying
Person under such paragraph, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the offering
of the Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same respective
proportions as the net proceeds from the offering of such Securities (before
deducting expenses) received by the Company and the total underwriting discounts
received by the Underwriters bear to the aggregate public offering price of the
Securities. The relative fault of the Company on the one hand and the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall the
Underwriters be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
the Underwriters have otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligation of the Underwriters
to
25
contribute pursuant to this Section 7 is several in proportion to their
respective underwriting commitment and is not joint.
The indemnity and contribution agreements contained in this Section
7 are in addition to any liability which the Indemnifying Persons may otherwise
have to the Indemnified Persons referred to above.
The indemnity and contribution agreements contained in this Section
7 and the representations, warranties, and covenants of the Company set forth in
this Agreement shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of the Underwriters or any person controlling the Underwriters or by or
on behalf of the Company, its officers or directors or any other person
controlling the Company and (iii) acceptance of and payment for any of the
Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representatives, by notice given to
the Company, if after the execution and delivery of this Agreement and prior to
the Closing Date (i) trading generally shall have been suspended or materially
limited on or by, as the case may be, the New York Stock Exchange, (ii) trading
of any securities of or guaranteed by the Company shall have been suspended or
materially limited on any exchange or in any over-the-counter market, (iii) a
general moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities, (iv) there shall have
occurred any outbreak or escalation of hostilities involving the United States
or any change in financial markets in the United States or any calamity or
crisis or any change or development involving a prospective change in national
or international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Representatives,
material and adverse and which, in the judgment of the Representatives makes it
impracticable or inadvisable to market the Securities on the terms and in the
manner contemplated in the Prospectus or (v) there has occurred a material
disruption in securities settlement or clearance services.
9. If this Agreement shall be terminated by the Underwriters because
of any failure or refusal on the part of the Company to comply with the terms or
to fulfill any of the conditions of this Agreement, or if for any reason the
Company shall be unable to perform its obligations under this Agreement or any
condition of the Underwriters' obligations cannot be fulfilled, the Company
agrees to reimburse the Underwriters, for all out-of-pocket expenses (including
the fees and expenses of its counsel) reasonably incurred by the Underwriters in
connection with
26
this Agreement or the offering of Securities contemplated hereunder and the
Company shall then be under no further liability to the Underwriters except as
provided in Sections 5(m) and 7 of this Agreement.
10. (a) If any Underwriter shall default in its obligation to
purchase the Securities which it has agreed to purchase hereunder, the
Representatives may in their discretion arrange for themselves or another party
or other parties to purchase such Securities on the terms contained herein. If
within thirty six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Securities, then the
Company shall be entitled to a further period of thirty six hours within which
to procure another party or other parties reasonably satisfactory to the
Representatives to purchase such Securities on such terms. In the event that,
within the respective prescribed period, the Representatives notify the Company
that they have so arranged for the purchase of such Securities, or the Company
notifies the Representatives that it has so arranged for the purchase of such
Securities, the Representatives or the Company shall have the right to postpone
the Closing Date for such Securities for a period of not more than seven days,
in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented, or in any
other documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in the reasonable opinion of the Representatives may thereby be made necessary.
The term "Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had originally
been a party to the this Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Securities which remains unpurchased does not
exceed one eleventh of the aggregate principal amount of the Securities, then
the Company shall have the right to require each non-defaulting Underwriter to
purchase the principal amount of Securities which such Underwriter agreed to
purchase under this Agreement relating to such Securities and, in addition, to
require each non-defaulting Underwriter to purchase its pro rata share (based on
the principal amount of Securities which such Underwriter agreed to purchase
under this Agreement) of the Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
27
(c) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Securities which remains unpurchased exceeds one
eleventh of the aggregate principal amount of the Securities, as referred to in
subsection (b) above, or if the Company shall not exercise the right described
in subsection (b) above to require non-defaulting Underwriters to purchase
Securities of defaulting Underwriter or Underwriters, then this Agreement shall
thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, and the Company shall then be under no further
liability to the Underwriters except as provided in Sections 5(m) and 7 of this
Agreement; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
11. This Agreement shall inure to the benefit of and be binding upon
the Company, the Underwriters, any controlling persons referred to herein and
their respective successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. No purchaser of Securities
from the Underwriters shall be deemed to be a successor by reason merely of such
purchase.
12. Under the terms of the Company's Amended and Restated
Declaration of Trust, all persons dealing with the Company shall look solely to
the Company property for satisfaction of claims of any nature, and no trustee,
officer, agent or shareholder of the Company shall be held to any person liable
in tort, contract or otherwise as the result of the execution and delivery of
this Agreement by the Company.
13. 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
given to Banc of America Securities LLC, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, XX
00000 (facsimile number: (000) 000 0000), Attn: Transaction Management, and
Citigroup Global Markets Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000
(facsimile number: (000) 000-0000), Attn: Liability Management. Notices to the
Company shall be given to it at 0000 Xxxx Xxxxxxxx, Xxxxx 000, Xxxxxxxxx,
Xxxxxxxx 00000 (facsimile number: (000) 000-0000), Attn: Xxxxxxxx Xxxxxx, Senior
Vice President and General Counsel.
28
14. This Agreement may be signed in counterparts, each of which
shall be an original and all of which together shall constitute one and the same
instrument. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to the conflicts of
laws provisions thereof.
[REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK]
29
If the foregoing is in the accordance with your understanding,
please sign and return to us five counterparts hereof.
Very truly yours,
ARCHSTONE - XXXXX OPERATING TRUST
By: /s/ Archstone-Xxxxx Operating Trust
-----------------------------------
Name:
Title:
Accepted: July 28, 0000
XXXX XX XXXXXXX SECURITIES LLC
By: /s/ Banc of America Securities LLC
-----------------------------------
Name:
Title:
CITIGROUP GLOBAL MARKETS INC.
By: Citigroup Global Markets Inc.
-----------------------------------
Name:
Title:
Acting on behalf of themselves and as the
Representatives of the other Underwriters
Schedule I
Underwriters: Banc of America Securities LLC................ $120,000,000
Citigroup Global Markets Inc.................. $120,000,000
Credit Suisse First Boston LLC................ $ 12,000,000
X.X. Xxxxxx Securities Inc. .................. $ 12,000,000
Xxxxxx Brothers Inc. ......................... $ 12,000,000
Xxxxxx Xxxxxxx & Co. Incorporated............. $ 12,000,000
Xxxxx Xxxxxxx & Co. .......................... $ 3,000,000
Scotia Capital (USA) Inc. .................... $ 3,000,000
SunTrust Capital Markets, Inc. ............... $ 3,000,000
Wedbush Xxxxxx Securities Inc. ............... $ 3,000,000
Underwriting Agreement dated: July 28, 2004
Registration Statement Number: 333-114394
Title of Securities: 5.625% Senior Notes due 2014 (the "Notes")
Aggregate Principal Amount: $300,000,000
Purchase Price: 99.135% of the principal amount, plus accrued
interest, if any, from August 2, 2004 to the
Closing Date
Price to Public: 99.785% of the principal amount, plus accrued
interest, if any, from August 2, 2004 to the
Closing Date
Indenture: Indenture dated as of February 1, 1994
between the Company and Xxxxxx Guaranty
Trust Company of New York, as trustee
(the "Base Indenture"), as supplemented
by the First Supplemental Indenture dated
as of February 2, 1994 between the
Company and U.S. Bank National
Association (successor in interest to
State Street Bank and Trust Company), as
successor trustee (the "Trustee") (the
"First Supplemental Indenture") and the
Second Supplemental Indenture to be
entered into as of the Closing Date
between the Company and Trustee (the
"Second Supplemental Indenture," and
together with the First Supplemental
Indenture and the Base Indenture, the
"Indenture").
Maturity: August 15, 2014
I-1
Interest Rate: 5.625%
Interest Payment Dates: February 15 and August 15, commencing
February 15, 2005
Optional Redemption Provisions: The Notes are redeemable at any time at the
option of the Company, in whole or in part, at
a redemption price equal to the sum of (i) the
principal amount of the Notes being redeemed
plus accrued interest thereon to the redemption
date and (ii) the Make-Whole Amount (as defined
in the Prospectus Supplement relating to the
Notes, if any (the "Redemption Price")
Sinking Fund Provisions: None
Closing Date: The Closing will be held at Time of Delivery:
10:00 a.m. (E.S.T.) on August 2, 2004, with the
Notes being delivered through the book-entry
facilities of The Depository Trust Company
("DTC") and made available for checking by DTC
and the Trustee at least 24 hours prior to the
Closing Date
Closing Location: Offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP, Four Times Square, Xxx Xxxx, XX 00000
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Schedule II
SUBSIDIARIES
ARCHSTONE-XXXXX OPERATING TRUST
State of
Incorporation or Percentage
Subsidiary Name Organization Owned
--------------- ---------------- ----------
Archstone-Xxxxx Communities LLC Delaware 100%
PTR-California Holdings (1) LLC Delaware 100%
PTR-California Holdings (3) LLC Delaware 100%
PTR-Colorado (1), LLC Colorado 80%
Security Capital Atlantic Multifamily LLC Delaware 100%
SCA-North Carolina (1) LLC Delaware 100%
SCA-North Carolina (2) LLC Delaware 100%
SCA Florida Holdings (2) LLC Delaware 100%
Xxxxx Property Holding Renaissance Manager Delaware 100%
L.L.C.
SCA North Carolina Limited Partnership Delaware 100%
ASN Washington Holdings (1) LLC Delaware 100%
ASN RH Member LLC Delaware 100%
ASN San Diego LLC Delaware 100%
ASN Studio City LLC Delaware 100%
ASN Massachusetts Holdings (1) LLC Delaware 100%
II-1
ASN Massachusetts Holdings (2) LLC Delaware 100%
ASN Massachusetts Holdings (3) LLC Delaware 100%
ASN Massachusetts Holdings (4) LLC Delaware 100%
ASN Massachusetts Holdings (5) LLC Delaware 100%
ASN Multifamily Limited Partnership Delaware 100%
Turtle Run at Coral Springs, L.L.C. Delaware 25%
ASN Pinacle LLC Delaware 100%
Xxxxx Property Holding Ballston Place LLC Delaware 100%
ASN Dakota Ridge L.L.C. Delaware 78%
ASN Wendemere L.L.C. Delaware 88.54%
Archstone Management Services (Florida) Delaware 100%
Incorporated
Archstone Vinnin Square LLC Delaware 25%
ASN Northgate, LLC Delaware 100%
ASN Xxxxxxxxxx Highlands LLC Delaware 100%
ASN Technologies, Inc. Delaware 100%
ASN Xxxxxxx Commons LLC Delaware 100%
ASN Sussex Commons LLC Delaware 100%
ASN Xxxxxxx Xxxxxxx LLC Delaware 100%
ASN Saybrooke LLC Delaware 100%
ASN Cambridge LLC Delaware 100%
II-2
ASN Watertown LLC Delaware 100%
ASN Park Place LLC Delaware 100%
ASN Washington Boulevard LLC Delaware 100%
ASN West End LLC Delaware 100%
ASN XXX Holdings LLC Delaware 100%
Courthouse Hill L.L.C. Delaware 100%
Xxxxx Property Holdings 2000 Delaware 100%
Commonwealth L.L.C.
Xxxxx Property Holdings Crystal Delaware 100%
Plaza L.L.C.
Xxxxx Property Holdings Dearborn Delaware 100%
Place Manager L.L.C.
Xxxxx Property Holdings One Delaware 100%
East Delaware L.L.C.
Xxxxx Property Holdings Lincoln Virginia 100%
Towers L.L.C.
Xxxxx Property Holdings Xxxxxxx Xxxxxx L.P. Delaware 100%
Xxxxx Property Holdings Kenmore L.P. Delaware 100%
First Xxxxxxx Associates L.P. Delaware 100%
Archstone Financial Services LLC Delaware 100%
Xxxxx Property Holdings Van Delaware 100%
Ness X.X.
Xxxxx Property Holdings Columbia Road, L.P. Delaware 100%
Xxxxx Property Holdings Xxxxxx'x Landing L.P. Massachusetts 100%
II-3
Xxxxx Property Holdings Delaware 100%
0000 Xxxxxxxxxxx Xxxxxx L.L.C.
Xxxxx Property Holdings Delaware 100%
Xxxxxxxx House L.L.C.
Xxxxx Property Holdings Delaware 100%
XxXxxxx Court L.L.C.
Xxxxx Property Holdings Parc Vista L.L.C. Delaware 100%
Xxxxx Property Holdings Delaware 100%
Superior Place L.L.C.
Xxxxx Property HoldingsWater Park Towers L.L.C. Delaware 100%
Xxxxx Property Holdings Alban Delaware 100%
Towers L.L.C.
Xxxxx Property Holdings Xxxxx Xxxxxx Two L.L.C. Delaware 100%
Xxxxx Property Holdings Aventura A L.L.C. Delaware 100%
Xxxxx Property Holdings Aventura B L.L.C. Delaware 100%
Xxxxx Property Holdings Delaware 100%
Aventura C L.L.C.
Xxxxx Property Holdings Consulate L.L.C. Delaware 100%
Xxxxx Property Holdings Delaware 100%
Crystal Houses L.L.C.
Xxxxx Property Holdings South Beach Towers Delaware 100%
L.L.C.
Xxxxx Property Holdings Sunset Pointe Court Delaware 100%
L.L.C.
II-4
Xxxxx Property Holdings Sunset Pointe III L.L.C. Delaware 100%
Xxxxx Property Holdings Sunset Pointe South Delaware 100%
L.L.C.
Xxxxx Property Holdings Concord L.L.C. Delaware 100%
Xxxxx Property Holdings Harbour House L.L.C. Delaware 100%
Xxxxx Property Holdings Illinois Center L.L.C. Delaware 100%
Xxxxx Property Holdings New River Village L.L.C. Delaware 100%
Xxxxx Property Holdings Reston Landing L.L.C. Delaware 100%
Xxxxx Property Holdings Sagamore Towers, L.L.C. Delaware 100%
Xxxxx Property Holdings Virginia 100%
Springfield L.L.C.
Xxxxx Property Holdings Xxxxxx L.L.C. Delaware 100%
Metropolitan Acquisition Finance L.P. Delaware 100%
Xxxxx Realty Company Maryland 100%
Archstone Property Management LLC Delaware 100%
Archstone Property Management (California) Delaware 100%
Incorporated
ASN Maple Leaf (Office) LLC Delaware 100%
II-5
ASN Meadow Wood LLC Delaware 100%
ASN Newport Crossing LLC Delaware 100%
ASN Rockville LLC Delaware 100%
ASN Stone Ridge Manager LLC Delaware 100%
ASN Stone Ridge LLC Delaware 40%
ASN Villa Redondo LLC Delaware 100%
Xxxxx Property Holdings Harbour House South LLC Delaware 100%
Xxxxx Property Holdings Five (D.C.) L.P. Delaware 99.5%
Xxxxx Property Holdings Five L.P. Delaware 99.5%
Xxxxx Property Holdings Four L.P. Delaware 99%
ASN Lakeshore East LLC Delaware 100%
Xxxxx Property Holdings One (D.C.) L.P. Delaware 99.5%
Xxxxx Property Holdings One L.P. Delaware 99.5%
Xxxxx Property Holdings Seven L.P. Delaware 99%
Xxxxx Property Holdings Six (D.C.) L.P. Delaware 99.5%
Xxxxx Property Holdings Six L.P. Delaware 99.5%
Xxxxx Property Holdings Three (D.C.) L.P. Delaware 99.5%
Xxxxx Property Holdings Three L.P. Delaware 99.5%
Xxxxx Property Holdings Two (D.C.) L.P. Delaware 99.5%
Xxxxx Property Holdings Two L.P. Delaware 99.5%
II-6
Archstone-Xxxxx Unitholder Services LLC Delaware 100%
ASN Bowie LLC Delaware 100%
ASN Calabasas I LLC Delaware 100%
ASN Calabasas II LLC Delaware 100%
ASN Cypress Cove LLC Delaware 100%
ASN Dupont Cirle LLC Delaware 100%
ASN Esplanade at Park Center LLC Delaware 100%
ASN Estancia LLC Delaware 100%
ASN Fairfax Corner LLC Delaware 100%
ASN Las Xxxxxx LLC Delaware 100%
ASN Maple Leaf Member LLC Delaware 100%
ASN Marina Del Rey LLC Delaware 100%
ASN Miramar Lakes LLC Delaware 100%
TRG-Pembroke Road LLC Florida 100%
ASN P&M Realty LLC Delaware 100%
ASNN Park Essex LLC Delaware 100%
ASN Presidio View LLC Delaware 50%
ASN Rolling Hills Manager LLC Delaware 100%
II-7
ASN Roosevelt Center LLC Delaware 100%
ASN Santa Xxxxxx LLC Delaware 100%
ASN Sonoma LLC Delaware 100%
ASN Ventura LLC Delaware 100%
Milestone Apartments Business Trust Delaware 100%
Panorama Insurance Ltd. Bahamas 100%
Xxxxx Property Holdings Orleans L.L.C. Delaware 100%
Xxxxx Property Holdings Plaza 440 Manager L.L.C. Delaware 100%
AMERITON Properties Incorporated Maryland 100%
API Barringotn Hills, L.L.C. Delaware 100%
API Chauncey Ranch LLC Delaware 100%
API Genesis Park LLC Delaware 100%
API Hibiscus LLC Delaware 100%
API Jefferson Park LLC Delaware 100%
API Methuen LLC Delaware 100%
API Mission North LLC Delaware 100%
API Multifamily Properties I LLC Delaware 100%
API Roosevelt Center Incorporated Delaware 100%
II-8
API Sonoma Incorporated Delaware 100%
API Verandahs GP 1 LLC Delaware 100%
API Verandahs GP 2 LLC Delaware 100%
API Verandahs B LLC Delaware 100%
API West End Incorporated Delaware 100%
II-9
