EXHIBIT 1.1
4,200,000 Shares
CAMDEN PROPERTY TRUST
Common Shares of Beneficial Interest
(par value $0.01 per share)
UNDERWRITING AGREEMENT
July 15, 1997
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
c/x Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Camden Property Trust, a Texas real estate investment trust (the
"Company"), proposes to issue and sell 4,200,000 shares of its beneficial
interests, par value $0.01 per share (the "Firm Shares"), to the several
underwriters named in Schedule I hereto (the "Underwriters"). The
Company also proposes to issue and sell to the Underwriters not more than
630,000 additional shares of its beneficial interests, par value $0.01
per share (the "Additional Shares"), if requested by the Underwriters as
provided in Section 2 hereof. The Firm Shares and the Additional Shares
are hereinafter referred to collectively as the "Shares." The shares of
beneficial interest of the Company to be outstanding after giving effect
to the sales contemplated hereby are hereinafter referred to as the
"Common Shares."
SECTION 1. Registration Statement and Prospectus. 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 "Act"), a registration statement on Form
S-3 (Registration No. 333-24637), including a prospectus, relating to the
Shares. Such registration statement, as amended at the time it became
effective, including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A
under the Act, is hereinafter referred to as the "Registration
Statement." A prospectus supplement (the "Prospectus Supplement")
setting forth the terms of the Common Shares and of their sale and
distribution has been or will be so prepared and will be filed pursuant
to Rule 424(b) of the Act on or before the second business day after the
date hereof (or such earlier time as may be required by the Act). The
final form of prospectus included in the Registration Statement, as
supplemented by the Prospectus Supplement, is referred to herein as the
"Prospectus." Each form of Prospectus, or Prospectus and Prospectus
Supplement heretofore made available for use in the offering of Common
Shares is referred to herein as a "Preliminary Prospectus." Any reference
herein to the Registration Statement, the Prospectus or any amendment or
supplement thereto shall be deemed to refer to and include the exhibits
thereto (or, in the case of the Prospectus, to the exhibits to the
Registration Statement) and the documents incorporated by reference
therein and the terms "supplement", "amendment" or "amend" as used in
this Agreement with respect to the Registration Statement or Prospectus
shall include all documents subsequently filed by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission thereunder (collectively,
the "Exchange Act") that are deemed to be incorporated by reference
therein.
SECTION 2. Agreements to Sell and Purchase and Lock-Up Agreements.
The Company and Camden Operating, L.P., a Delaware limited partnership in
which the Company holds a 80.1% ownership interest through two
subsidiaries (the "Operating Partnership"), confirm as follows their
agreements with the Underwriters:
On the basis of the representations, warranties and agreements of
the Company and the Operating Partnership herein contained and subject to
all the terms and conditions of this Agreement, the Company agrees to
issue and sell, and each Underwriter agrees, severally and not jointly,
to purchase from the Company at a price per Share of $29.45 (the
"Purchase Price") the number of Firm Shares set forth opposite the name
of such Underwriter in Schedule I hereto.
On the basis of the representations, warranties and agreements of
the Company and the Operating Partnership herein contained and subject to
all the terms and conditions of this Agreement, the Company agrees to
issue and sell the Additional Shares and the Underwriters shall have the
right to purchase, severally and not jointly, up to 630,000 Additional
Shares from the Company at the Purchase Price (the "Option"). Additional
Shares may be purchased solely for the purpose of covering
over-allotments made in connection with the offering of the Firm Shares.
The Underwriters may exercise their right to purchase Additional Shares
in whole or in part from time to time by giving written notice thereof to
the Company within 30 days after the date of this Agreement. The
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation shall give any such
notice on behalf of the Underwriters and such notice shall specify the
aggregate number of Additional Shares to be purchased pursuant to such
exercise and the date for payment and delivery thereof, which date shall
be a business day (i) no earlier than two business days after such notice
has been given (and, in any event, no earlier than the Closing Date (as
hereinafter defined)) and (ii) no later than ten business days after such
notice has been given. If any Additional Shares are to be purchased,
each Underwriter, severally and not jointly, agrees to purchase from the
Company the number of Additional Shares (subject to such adjustments to
eliminate fractional shares as you may determine) which bears the same
proportion to the total number of Additional Shares to be purchased from
the Company as the number of Firm Shares set forth opposite the name of
such Underwriter in Schedule I bears to the total number of Firm Shares.
The Company hereby agrees not to (i) offer, pledge, sell, contract
to sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase, or
otherwise transfer or dispose of, directly or indirectly, any shares of
Common Shares or any securities convertible into or exercisable or
exchangeable for Common Shares or (ii) enter into any swap or other
arrangement that transfers all or a portion of the economic consequences
associated with the ownership of any Common Shares (regardless of whether
any of the transactions described in clause (i) or (ii) is to be settled
by the delivery of Common Shares, or such other securities, in cash or
otherwise), except to the Underwriters pursuant to this Agreement, for a
period of 90 days after the date of the Prospectus without the prior
written consent of Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation.
Notwithstanding the foregoing, during such period, (i) the Company may
grant stock options for Common Shares pursuant to the Company's existing
employee or director stock option plan or issue Common Shares pursuant to
its dividend reinvestment plan, (ii) the Company may issue Common Shares
upon the exercise of an option or warrant or the conversion of a security
outstanding on the date hereof, (iii) the Company may issue Common Shares
upon the exchange of units of limited partnership of the Operating
Partnership ("OP Units"), (iv) the Company may issue Common Shares, OP
Units or units of an affiliated limited partnership in a so-called
"down-REIT" structure for property acquired from third parties, and (v)
the Company may issue Common Shares pursuant to the exercise of the
Underwriters of the Option. The Company also agrees not to file any
registration statement with respect to any shares of Common Shares or any
securities convertible into or exercisable or exchangeable for Common
Shares for a period of 90 days after the date of the Prospectus without
the prior written consent of Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation, except as required by the Registration Rights Agreement,
dated April 15, 1997 among the Company, the Operating Partnership and
certain persons named therein (the "Registration Rights Agreement"). The
Company shall, prior to or concurrently with the execution of this
Agreement, deliver an agreement executed by each of the trust managers
and officers of the Company to the effect that such person will not,
during the period commencing on the date such person signs such agreement
and ending 90 days after the date of the Prospectus, without the prior
written consent of Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation,
(A) engage in any of the transactions described in the first sentence of
this paragraph, or (B) make any demand for, or exercise any right with
respect to, the registration of any shares of Common Shares or any
securities convertible into or exercisable or exchangeable for Common
Shares.
SECTION 3. Terms of Public Offering. The Company is advised by you
that the Underwriters propose (i) to make a public offering of their
respective portions of the Shares as soon after the execution and
delivery of this Agreement as in your judgment is advisable, and (ii)
initially to offer the Shares upon the terms set forth in the Prospectus.
SECTION 4. Delivery and Payment. Delivery to the Underwriters of
and payment for the Firm Shares shall be made at 9:00 A.M., New York City
time, on July 21, 1997 (the "Closing Date") at such place as you shall
designate. The Closing Date and the location of delivery of and payment
for the Firm Shares may be varied by agreement between you and the
Company.
Delivery to the Underwriters of and payment for any Additional
Shares to be purchased by the Underwriters shall be made at such place as
you shall designate at 9:00 A.M., New York City time, on the date
specified in the applicable exercise notice given by you pursuant to
Section 2 (an "Option Closing Date"). Any such Option Closing Date and
the location of delivery of and payment for such Additional Shares may be
varied by agreement between you and the Company.
Certificates for the Shares shall be registered in such names and
issued in such denominations as you shall request in writing not later
than two full business days prior to the Closing Date or an Option
Closing Date, as the case may be. Such certificates shall be made
available to you for inspection not later than 9:30 A.M., New York City
time, on the business day prior to the Closing Date or the applicable
Option Closing Date, as the case may be. Certificates in definitive form
evidencing the Shares shall be delivered to you on the Closing Date or
the applicable Option Closing Date, as the case may be, with any transfer
taxes thereon duly paid by the Company, for the respective accounts of
the Underwriters, against payment to the Company of the Purchase Price
therefor by wire transfer of federal or other funds immediately available
in New York City.
SECTION 5. Agreements of the Company and the Operating Partnership.
The Company and the Operating Partnership jointly and severally agree
with the Underwriters as follows:
(a) The Company will prepare the Prospectus Supplement in a form
approved by you and cause the Prospectus Supplement to be filed as
required by Section 6(a) within the applicable period specified in Rule
424(b) under the Act (but only if you have not reasonably objected
thereto by notice to the Company after having been furnished a copy a
reasonable time prior to filing) and notify you promptly of such filing.
(b) The Company will (i) advise you promptly and, if requested by
you, confirm such advice in writing, of any request by the Commission for
amendments to the Registration Statement or amendments or supplements to
the Prospectus or for additional information, (ii) prepare and file with
the Commission, promptly upon your reasonable request, any amendment to
the Registration Statement or amendment or supplement to the Prospectus
which may be necessary or advisable in connection with the distribution
of the Shares by you, (iii) use its best efforts to cause any amendment
to the Registration Statement to become promptly effective, (iv) advise
you promptly and, if requested by you, to confirm such advice in writing,
when any amendment to the Registration Statement becomes effective, and
(v) for such period as in the opinion of counsel for the Underwriters a
Prospectus is required by law to be delivered in connection with sales of
Common Shares by an Underwriter or a dealer (the "Prospectus Delivery
Period"), not file any further amendment to the Registration Statement
and not make any amendment or supplement to the Prospectus, unless a copy
thereof shall have been submitted to the Underwriters within a reasonable
period of time prior to the filing thereof and you shall not have
objected thereto in good faith.
(c) The Company will promptly advise you of and, if requested by
you, confirm such advice in writing, (i) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the
Shares for offering or sale in any jurisdiction, or the initiation of any
proceeding for such purposes or the threat thereof, (ii) of the happening
of any event during the period referred to in Section 5(f) below which
makes any statement of a material fact made in the Registration Statement
or the Prospectus untrue or which requires any additions to or changes in
the Registration Statement or the Prospectus in order to make the
statements therein not misleading, and (iii) of receipt by the Company or
any representative or attorney of the Company of any other communication
from the Commission relating to the Company, the Registration Statement,
or the Prospectus. If at any time the Commission shall issue any stop
order suspending the effectiveness of the Registration Statement, the
Company will use its best efforts to obtain the withdrawal or lifting of
such order at the earliest possible time.
(d) During the Prospectus Delivery Period, the Company will furnish
to you, upon request and without charge, two signed copies of the
Registration Statement as first filed with the Commission and of each
post- effective amendment thereto, including all exhibits, financial
statements, schedules and any documents incorporated by reference therein
and furnish to you and each Underwriter designated by you, without
charge, such number of conformed copies of the Registration Statement as
so filed and of each post-effective amendment thereto as you may
reasonably request, without exhibits, financial statements or schedules,
but including documents incorporated by reference therein.
(e) The Company will, prior to 10:00 A.M., New York City time, on
the first business day after the date of this Agreement and from time to
time thereafter during the Prospectus Delivery Period, furnish in New
York City to each Underwriter and any dealer without charge as many
copies of the Prospectus containing the Prospectus Supplement or any
amendment or supplement thereto and any documents incorporated by
reference as such Underwriter or dealer may reasonably request. The
Company consents to the use of the Prospectus, the Prospectus Supplement
or any amendment or supplement thereto by the Underwriter and by all
dealers to whom the Shares may be sold, both in connection with the
offering or sale of the Shares and for any period of time thereafter
during which the Prospectus is required by law to be delivered in
connection therewith.
(f) If during the Prospectus Delivery Period, any event shall occur
or condition shall exist as a result of which, in the opinion of counsel
for the Underwriters, it becomes 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, in the opinion of counsel for the Underwriters, it is
necessary to amend or supplement the Prospectus to comply with applicable
law, the Company will forthwith prepare and file with the Commission an
appropriate amendment or supplement to the Prospectus so that the
statements in the Prospectus, as so amended or supplemented, will not in
the light of the circumstances when it is so delivered, be misleading, or
so that the Prospectus will comply with applicable law, and furnish to
each Underwriter and to any dealer, without charge, as many copies
thereof as such Underwriter or dealer may reasonably request. The Company
shall not file any document under the Exchange Act before the termination
of the offering of the Shares by the Underwriter which is not approved by
the Underwriter after reasonable notice thereof if such document would be
deemed to be incorporated by reference into the Prospectus.
(g) The Company will comply with all the provisions of any
undertakings contained in the Registration Statement.
(h) Prior to any public offering of the Shares, the Company will
cooperate with you and counsel for the Underwriters in connection with
the registration or qualification of the Shares for offer and sale by the
Underwriters and by dealers under the state securities or Blue Sky laws
of such jurisdictions as you may request, continue such qualification in
effect so long as required for distribution of the Shares and file such
consents to service of process or other documents as may be necessary in
order to effect such registration or qualification; provided, however,
that in no event shall the Company be obligated to qualify to do business
in any jurisdiction in which it is not now so qualified or to take any
action that would subject it to general consent to service of process in
any jurisdiction in which it is not now so subject.
(i) The Company will mail and make generally available to its
shareholders as soon as practicable but in no event later than the last
day of the fifteenth full calendar month following the end of the
Company's current fiscal quarter, an earnings statement (which need not
be audited but shall be in reasonable detail) for a period of 12 months
beginning after the date upon which the Prospectus Supplement is filed
pursuant to Rule 424 under the Act, satisfying the provisions of Section
11(a) of the Act (including Rule 158 of the Act) and advise you in
writing when such statement has been so made available.
(j) During the period of five years after the date of this
Agreement, the Company will furnish to you as soon as available copies of
all financial statements and periodic or special reports or other
communications furnished to the record holders of Common Shares or
furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed and
such other publicly available information concerning the Company and its
subsidiaries as you may reasonably request.
(k) Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, the Company will pay or
cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including, but not limited to, fees,
costs and expenses relating to: (i) the fees, disbursements and expenses
of the Company's counsel and the Company's accountants in connection with
the registration and delivery of the Shares under the Act and all other
fees or expenses in connection with the preparation, printing, filing and
distribution of the Registration Statement (including financial
statements and exhibits), any Preliminary Prospectus, the Prospectus and
all amendments and supplements to any of the foregoing with the
Commission prior to or during the Prospectus Delivery Period, including
the mailing and delivering of copies thereof to the Underwriters and
dealers in the quantities specified herein, (ii) all costs and expenses
related to the transfer and delivery of the Shares to the Underwriters,
including any transfer or other taxes payable thereon and the cost of
printing certificates representing the Shares, (iii) all costs of
printing or producing this Agreement and any other agreements or
documents in connection with the offering, purchase, sale or delivery of
the Shares, (iv) all expenses in connection with the registration or
qualification of the Shares for offer and sale under the securities or
Blue Sky laws of such jurisdictions designated by Section 5(h) and all
costs of printing or producing any Preliminary and Supplemental Blue Sky
Memoranda in connection therewith (including the filing fees, fees,
disbursements and other charges of counsel for the Underwriters in
connection with such registration or qualification and memoranda relating
thereto) not to exceed $7,500, (v) the filing fees, disbursements and
other charges of counsel for the Underwriters in connection with the
review and clearance of the offering of the Shares by the National
Association of Securities Dealers, Inc., (vi) all fees, costs and
expenses incident to the listing of the Shares on The New York Stock
Exchange (the "NYSE") and other national securities exchanges and foreign
stock exchanges, (viii) the costs and charges of any transfer agent,
registrar and/or depositary, (ix) the costs, fees and disbursements of
any surveyors, engineers, appraisers, photographers and other
professionals engaged by or on behalf of the Company, (x) preparation of
slides, overheads, and other presentation material to be used on any
"road show" or presentation to potential investors and the hotel, travel,
and other expenses of the Company's employees in connection with any such
"road show" or investor presentation, and (xi) and all other costs and
expenses incident to the performance of the obligations of the Company
hereunder for which provision is not otherwise made in this Section.
(l) If this Agreement shall be terminated by the Company pursuant
to any of the provisions hereof (otherwise than pursuant to Section 9
hereof) or if for any reason the Company shall be unable to perform its
obligations hereunder, the Company will reimburse you for all
out-of-pocket expenses (including the fees, disbursements and other
charges of counsel to the Underwriters) reasonably incurred by you in
connection herewith.
(m) The Company will not at any time, directly or indirectly, take
any action intended, or which might reasonably be expected, to cause or
result in, or which will constitute, stabilization of the price of the
Common Shares to facilitate the sale or resale of any of the Shares.
(n) The Company will apply the net proceeds from the offering and
sale of the Shares to be sold by the Company in the manner set forth in
the Prospectus under the caption "Use of Proceeds."
(o) The Company will not, and will cause each of its executive
officers and trust managers to enter into agreements with you in the form
set forth on Exhibit A to the effect that they will not, for a period of
90 days after the commencement of the public offering of the Shares,
without the prior written consent of Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation, sell, contract to sell or otherwise dispose of
any Common Shares, rights to acquire Common Shares or OP Units (other
than in the case of the Company, pursuant to employee and director stock
options plans, the Company's dividend reinvestment plan, the exercise of
warrants, options or the conversion of a security outstanding on the date
hereof, the exchange of OP Units presented for redemption or the exchange
of Common Shares, OP Units or units of any affiliated limited partnership
in a so-called "down-REIT" structure for property acquired from third
parties and the exercise by the Underwriters of the Option).
(p) The Company will continue to elect to qualify as a "real estate
investment trust" ("REIT") under Sections 856 through 860 of the Internal
Revenue Code of 1986, as amended (the "Code"), and will use its best
efforts to continue to meet the requirements to qualify as a REIT.
(q) The Company will use its best efforts to list, subject to
official notice of issuance, the Shares on the NYSE and to maintain the
listing of the Shares on the NYSE for a period of three years after the
date of this Agreement.
(r) The Company will use its best efforts to do and perform all
things required or necessary to be done and performed under this
Agreement by the Company prior to the Closing Date or any Option Closing
Date, as the case may be, and to satisfy all conditions precedent to the
delivery of the Shares.
SECTION 6. Representations and Warranties of the Company and the
Operating Partnership. The Company and the Operating Partnership jointly
and severally represent, warrant and covenant with the Underwriters as
follows:
(a) The conditions for the use of a registration statement on Form
S-3 set forth in the General Instructions on Form S-3 have been satisfied
and the Company is entitled to use such form for the transactions
contemplated herein. The Registration Statement (Registration No.
333-24637) on Form S-3 relating to the Shares, including a Prospectus,
has been carefully prepared by the Company in conformity with the
requirements of the Act, has been filed with the Commission, and has
become effective. Such Registration Statement and Prospectus may have
been amended or supplemented prior to the date of this Agreement; any
such amendment or supplement was so prepared and filed, and any such
amendment filed after the effective date of such registration statement
has become effective. No stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such purpose
are pending before or threatened by the Commission. Copies of such
Registration Statement and Prospectus, any such amendments or supplements
and all documents incorporated by reference therein that were filed with
the Commission on or prior to the date of this Agreement have been
delivered or made available to the Underwriters. A Prospectus Supplement
setting forth the terms of the Common Shares and of their sale and
distribution has been or will be so prepared and will be filed pursuant
to Rule 424(b) of the Act on or before the second business day after the
date hereof (or such earlier time as may be required by the Act).
(b) (i) Each part of the Registration Statement and any amendment
thereto, when such part became effective or becomes effective on the date
of the filing thereof with the Commission and at the Closing Date, and if
later, the Option Closing Date, including the financial statements
included or to be included or incorporated by reference or to be
incorporated by reference into the Prospectus, (A) complied or will
comply in all material respects with the requirements of the Act or the
Exchange Act, as applicable, and contained or will contain all statements
required to be stated therein in accordance with the Act or the Exchange
Act, as applicable, and (B) did not or will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(ii) The Prospectus and any amendment or supplement, if
applicable, on the date of the filing thereof with the Commission and at
the Closing Date, and if later, the Option Closing Date, (A) complied or
will comply in all material respects with the requirements of the Act,
and contained or will contain all statements required to be stated
therein in accordance with the Act, and (B) did not or will not include
an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(iii) Each Preliminary Prospectus on the date of the filing
thereof with the Commission pursuant to Rule 424 under the Act, (A)
complied in all material respects with the requirements of the Act, and
contained all statements required to be stated therein in accordance with
the Act, and (B) did not include an untrue statement of a material fact
or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
(v) The documents incorporated by reference or to be
incorporated by reference into the Registration Statement, the Prospectus
or any amendment or supplement thereto or from which information is so
incorporated by reference, when they became effective or become effective
or were or are filed with the Commission, as the case may be, complied or
will comply in all material respects with the requirements of the Act or
the Exchange Act, as applicable.
(vii) The foregoing representations and warranties in this
Section 6(b) do not apply to any statements or omissions made in reliance
on and in conformity with information relating to the Underwriters
furnished in writing to the Company by the Underwriters specifically for
inclusion in the Registration Statement, Prospectus, Preliminary
Prospectus or any amendment or supplement thereto. The Company
acknowledges that the statements set forth under the caption
"Underwriting" in the Prospectus constitute the only information relating
to any Underwriter furnished in writing to the Company by you on behalf
of the Underwriters expressly for inclusion in the Registration Statement
or the Prospectus. The Company has not distributed any offering material
in connection with the offering or sale of the Shares other than the
Registration Statement, the Prospectus, or any other materials, if any,
permitted by the Act.
(c) The financial statements, together with the related schedules
and notes thereto, forming part of, incorporated by reference into, or to
be incorporated by reference into the Registration Statement or the
Prospectus (and any amendment or supplement thereto), present fairly the
consolidated financial position of the Company, the Operating Partnership
and the Subsidiaries (as hereinafter defined) and the results of
operations and cash flows of the Company, the Operating Partnership and
the Subsidiaries on the basis stated in the Registration Statement or the
Prospectus at the respective dates or for the respective periods to which
they apply; such financial statements and related schedules and notes
have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods involved;
the supporting schedules included or incorporated by reference in the
Registration Statement or the Prospectus (and any amendment or supplement
thereto) present fairly the information required to be stated therein;
the summary financial and statistical information and data included,
incorporated by reference into, or to be incorporated by reference into,
the Registration Statement or the Prospectus (and any amendment or
supplement thereto) present fairly the information shown therein and have
been compiled on a basis consistent with the financial statements
presented therein. No other financial statements (or schedules) of the
Company, any predecessor of the Company or any other entity or business
are required by the Act or the Exchange Act to be included in the
Registration Statement or the Prospectus. Deloitte & Touche LLP (the
"Accountants"), who have reported on and certified certain of such
financial statements and schedules, are independent accountants with
respect to the Company as required by the Act. The statements included
in the Registration Statement with respect to the Accountants pursuant to
Rule 509 of Regulation S-K of the Act are true and correct in all
material respects. The pro forma financial statements of the Company
included in the Registration Statement and the Prospectus, if any, comply
in all material respects with the applicable requirements of Rule 11-02
of Regulation S-X of the Act and the pro forma adjustments have been
properly applied to the historical amounts in the compilation of such
statements.
(d) The Company has been duly formed and is validly existing as a
REIT with transferable shares of beneficial interest under the laws of
the State of Texas, with power and authority to own, lease or operate its
properties and conduct its business as described in the Prospectus, and
is qualified for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it currently owns
property, or conducts any business, so as to require such qualification,
except where the failure to be so qualified or in good standing does not
have a material adverse effect on the business, properties, financial
position or results of the Company, the Operating Partnership and the
Subsidiaries, taken as a whole. Complete and correct copies of the
charter documents and the by-laws of the Company and all amendments
thereto have been previously delivered to you, and no changes therein
will have been made subsequent to the date hereof and prior to the
Closing Date or, if later, the Option Closing Date. Except for stock or
partnership interests of the Operating Partnership and the Subsidiaries
or as described in the Registration Statement or Prospectus, the Company
does not own, and at the Closing Date will not own, directly or
indirectly, any equity or other interest in, or rights to acquire, an
equity or other interest in any corporation, partnership, trust, joint
venture or other entity. The only subsidiaries (as defined in the Act)
of the Company are the other entities identified on Exhibit B hereto (the
"Subsidiaries") and the Operating Partnership. Each Subsidiary and the
Operating Partnership has full power and authority to own, lease and
operate its properties and conduct its business as described in the
Registration Statement and the Prospectus, have been duly organized and
are validly existing as corporations or limited partnerships, as the case
may be, under the laws of their states of organization, and have been
duly qualified as foreign corporations or limited partnerships, as the
case may be, for the transaction of business, and, if applicable, is in
good standing under the laws of each jurisdiction in which they own or
lease properties or conduct business so as to require such qualification,
except where the failure to be so qualified or in good standing does not
have a material adverse effect on the business, properties, financial
position or results of the Company, the Operating Partnership and the
Subsidiaries, taken as a whole. Except for investments in securities as
described in the Registration Statement or Prospectus, neither the
Operating Partnership nor the Subsidiaries have equity or other interest
in, or rights to acquire, an equity or other interest in any corporation,
partnership, trust, joint venture or other entity. Complete and correct
copies of the charter documents and the by-laws of the Operating
Partnership and each Subsidiary and all amendments thereto have been
previously delivered to you, and no changes therein will have been made
subsequent to the date hereof and prior to the Closing Date or, if later,
the Option Closing Date.
(e) All the outstanding shares of beneficial interest of the
Company have been duly authorized and validly issued and are fully paid,
non-assessable and not subject to any preemptive or similar rights. The
Shares have been duly authorized and, when issued and delivered to the
Underwriters against payment therefor as provided by this Agreement, will
be validly issued, fully paid and non-assessable, and the issuance of
such Shares will not be subject to any preemptive or similar rights. All
the outstanding OP Units and all the outstanding shares of capital stock
or limited partnership units of each Subsidiary, as the case may be, has
been duly authorized and validly issued, and except as otherwise
disclosed in the Registration Statement or Prospectus, is owned by the
Company, directly or indirectly through one or more Subsidiaries, free
and clear of any security interest, claim, lien, encumbrance or adverse
interest of any nature. The description of the Common Shares and the OP
Units in the Registration Statement and the Prospectus is, and at the
Closing Date will be, in all material respects, complete and accurate.
Except as set forth in the Prospectus, the Company does not have
outstanding, and at the Closing Date will not have outstanding, any
options to purchase, or any rights or warrants to subscribe for, or any
securities or obligations convertible into, or any contracts or
commitments to issue or sell, any shares of Common Stock, OP Units, any
shares of capital stock of or limited partnership interest in any
Subsidiary or any such warrants, convertible securities or obligations.
(f) None of the Company, the Operating Partnership and the
Subsidiaries are in violation of its respective charter or by-laws or in
default in the performance of any obligation, agreement, covenant or
condition contained in any indenture, loan agreement, mortgage, deed of
trust, lease or other agreement or instrument that is material to the
Company, the Operating Partnership and the Subsidiaries, taken as a
whole, to which the Company, the Operating Partnership or any Subsidiary
is a party, or by which the Company, the Operating Partnership, any
Subsidiary or their respective property is bound.
(g) The Company and the Operating Partnership have full corporate
or partnership power and authority, as applicable, to enter into this
Agreement. This Agreement has been duly authorized, executed and
delivered by the Company and the Operating Partnership and constitutes a
valid and binding agreement of the Company and the Operating Partnership
and is enforceable against each in accordance with the terms hereof,
except that the enforceability thereof may be limited by or subject to
(i) bankruptcy, reorganization, insolvency, fraudulent conveyance,
moratorium or other similar laws now or hereafter existing which affect
the rights and remedies of creditors generally, and (ii) equitable
principles of general applicability, and except as rights to indemnity
and contribution hereunder may be limited by applicable law. The
performance of this Agreement and the consummation of the transactions
contemplated hereby and will not (i) conflict with or constitute a breach
of any of the terms or provisions of, or a default under or result in the
creation or imposition of any lien, charge or encumbrance upon any of the
assets of the Company, the Operating Partnership or the Subsidiaries
pursuant to the terms or provisions of, the charter or by-laws of the
Company, the Operating Partnership or any Subsidiary or any indenture,
loan agreement, mortgage, deed of trust, lease or other agreement or
instrument that is material to the Company, the Operating Partnership and
the Subsidiaries, taken as a whole, to which the Company, the Operating
Partnership or any Subsidiary is a party or by which the Company, the
Operating Partnership or any Subsidiary or their respective property is
bound or to which any of the property or assets of the Company, the
Operating Partnership or any Subsidiary is subject, or (ii) violate or
conflict with any applicable law or any rule, regulation, judgment, order
or decree of any court or any governmental body or agency having
jurisdiction over the Company, the Operating Partnership, any Subsidiary
or their respective property.
(h) No consent, approval, authorization, registration or other
order of, or qualification with, any court or governmental body or agency
is required for the consummation by the Company of the transactions on
its part herein contemplated, except such as have been obtained under the
Act and such as may be required under state securities or Blue Sky laws
or the by-laws and rules of the National Association of Securities
Dealers, Inc. in connection with the purchase and distribution by the
Underwriters of the Shares.
(i) Other than as set forth or contemplated in the Registration
Statement or Prospectus, there are no legal or governmental proceedings
pending or threatened to which the Company, the Operating Partnership or
any Subsidiary is or could be a party or to which any of their respective
property is or could be subject which, if determined adversely to the
Company, the Operating Partnership or any Subsidiary, could individually
or in the aggregate, reasonably be expected to have a material adverse
effect on the general affairs, business, prospects, management,
properties, financial position, shareholders' equity or results of
operations of the Company and, to the best of the Company's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others; nor are there 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 so described or
filed as required
(j) The Company, together with the Operating Partnership and the
Subsidiaries, maintains and will maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions
are executed in accordance with management's general or specific
authorization, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets, (iii)
access to financial and corporate books and records and financial
accounts is permitted only in accordance with management's general or
specific authorization, and (iv) the recorded accountability for assets
is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(k) The Company, the Operating Partnership and the Subsidiaries
have indefeasible, good and marketable title to all of the real
properties and assets reflected in the financial statements (or as
described in the Registration Statement or Prospectus) hereinabove
described, subject to no lien, mortgage, pledge, charge or encumbrance of
any kind except those reflected in the financial statements (or as
described in the Registration Statement or the Prospectus) or which are
not material in amount and which do not materially affect the value of
such property or materially interfere with the use made or proposed to be
made of such property by the Company, the Operating Partnership or any of
the Subsidiaries. The Company, the Operating Partnership and each of the
Subsidiaries occupy their leased properties under valid, subsisting,
binding and enforceable leases conforming to the description thereof set
forth in the Registration Statement and the Prospectus.
(l) The Company has and will maintain, property and casualty
insurance in favor of the Company, the Operating Partnership and the
Subsidiaries, as the case may be, with respect to each of the real
properties, in an amount and on such terms as is reasonable and customary
for businesses of the type proposed to be conducted by the Company, the
Operating Partnership and the Subsidiaries; the Company has not received
from any insurance company written notice of any material defects or
deficiencies affecting the insurability of any such properties.
(m) The Company and the Operating Partnership has filed all
material Federal, State, local and foreign income tax returns which have
been required to be filed and have paid all taxes indicated by said
returns and all assessments received by it to the extent that such taxes
have become due and are not being contested in good faith and for which
adequate reserves have been provided.
(n) With respect to the real properties of the Company described in
the Registration Statement or the Prospectus or reflected in the
Company's consolidated financial statements included or incorporated by
reference therein, the Company, the Operating Partnership and the
Subsidiaries (i) are in compliance with any and all applicable foreign,
Federal, state and local laws and regulations relating to the protection
of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental Laws"),
(ii) have obtained all permits, licenses or other approvals required of
them under applicable Environmental Laws to conduct their respective
businesses and (iii) are in compliance with all terms and conditions of
any such permit, license or approval, except where such noncompliance
with Environmental Laws, failure to obtain required permits, licenses or
other approvals or failure to comply with the terms and conditions of
such permits, licenses or approvals are otherwise disclosed in the
Prospectus or would not, singly or in the aggregate, have a material
adverse effect on the condition (financial or other), business (affairs
or other), prospects, earnings, net worth or results of operation of the
Company, the Operating Partnership and the Subsidiaries, taken as a
whole.
(i) None of the Company, the Operating Partnership and the
Subsidiaries has at any time, and, to the knowledge of the Company,
no other party has at any time, handled, buried, stored, retained,
refined, transported, processed, manufactured, generated, produced,
spilled, allowed to seep, leak, escape or xxxxx, or be pumped,
poured, emitted, emptied, discharged, injected, dumped, transferred
or otherwise disposed of or dealt with, Hazardous Materials (as
hereinafter defined) on, to or from the Properties, other than any
such action taken in compliance with all applicable Environmental
Laws or by tenants in connection with the ordinary use of
residential properties owned by the Company, the Operating
Partnership or the Subsidiaries; the Company does not intend to use
the Properties or any subsequently acquired properties described in
the Prospectus for the purpose of handling, burying, storing,
retaining, refining, transporting, processing, manufacturing,
generating, producing, spilling, seeping, leaking, escaping,
leaching, pumping, pouring, emitting, emptying, discharging,
injecting, dumping, transferring or otherwise disposing of or
dealing with Hazardous Materials other than in compliance with all
applicable Environmental Laws.
(ii) The Company does not know of any seepage, leak, escape,
leaching, discharge, injection, release, emission, spill, pumping,
pouring, emptying or dumping of Hazardous Materials into waters on
or adjacent to the Properties or onto lands from which such
hazardous or toxic waste of substances might seep, flow or drain
into such waters.
(iii) None of the Company, the Operating Partnership and the
Subsidiaries has received notice of, or has knowledge of any
occurrence or circumstance which, with notice or passage of time or
both, would give rise to, any claim under or pursuant to any
Environmental Law pertaining to Hazardous Material or toxic waste
or substances on or originating from the Properties or arising out
of the conduct of any such party, including, without limitation,
pursuant to any Environmental Law.
(iv) 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 Authorization, any
related constraints on operating activities and any potential
liabilities to third parties) which would, singly or in the
aggregate, have a material adverse effect on the business,
prospects, financial condition or results of operations of the
Company, the Operating Partnership and the Subsidiaries, taken as a
whole.
As used in Section 6(n), "Hazardous Material" shall include, without
limitation, any flammable explosives, radioactive materials,
hazardous materials, hazardous wastes, hazardous or toxic
substances, or related materials, asbestos or any material as
defined by any Federal, state or local environmental law,
ordinance, rule, or regulation including, without limitation,
Environmental Laws, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (42 U.S.C.
Section 9601, et seq.) ("CERCLA"), the Hazardous Materials
Transportation Act, as amended (49 U.S.C. Section 1801, et seq.),
the Resource Conservation and Recovery Act, as amended (42 U.S.C.
Section 9601, et seq.), and in the regulations adopted and
publications promulgated pursuant to each of the foregoing or by any
Federal, state or local governmental authority having or claiming
jurisdiction over the Properties as described in the Prospectus.
(o) The Company has complied with all provisions of Article 6138A
of the Texas Civil Statutes.
(p) None of the Company, the Operating Partnership and the
Subsidiaries has violated any provisions of the Employee Retirement
Income Security Act of 1974 ("ERISA"), as amended, or the rules and
regulations promulgated thereunder, except for such violations which,
singly or in the aggregate, would not have a material adverse effect on
the business, prospects, financial condition or results of operation of
the Company and its Subsidiaries, taken as a whole; and none of the
assets of the Company or the Subsidiaries constitute, nor will such
assets, as of the Closing Date, or if later, the Option Closing Date,
constitute, "plan assets" under ERISA.
(q) Each of the Company, the Operating Partnership and the
Subsidiaries has, and at the Closing Date, or if later, the Option
Closing Date, will have, such permits, licenses, consents, exemptions,
franchises, authorizations and other approvals (each, an "Authorization")
of, and has made all filings with and notices to, all governmental or
regulatory authorities and self-regulatory organizations and all courts
and other tribunals, including, without limitation, under any applicable
Environmental Laws, as are necessary to own, lease, license and operate
its respective properties and to conduct its business, except where the
failure to have any such Authorization or to make any such filing or
notice would not, singly or in the aggregate, have a material adverse
effect on the business, prospects, financial condition or results of
operations of the Company, the Operating Partnership and the
Subsidiaries, taken as a whole. Each such Authorization is valid and in
full force and effect and each of the Company, the Operating Partnership
and the Subsidiaries is in compliance with all the terms and conditions
thereof and with the rules and regulations of the authorities and
governing bodies having jurisdiction with respect thereto; and no event
has occurred (including, without limitation, the receipt of any notice
from any authority or governing body) which allows or, after notice or
lapse of time or both, would allow, revocation, suspension or termination
of any such Authorization or results or, after notice or lapse of time or
both, would result in any other impairment of the rights of the holder of
any such Authorization; and such Authorizations contain no restrictions
that are burdensome to the Company, the Operating Partnership or any
Subsidiary; except where such failure to be valid and in full force and
effect or to be in compliance, the occurrence of any such event or the
presence of any such restriction would not, singly or in the aggregate,
have a material adverse effect on the business, prospects, financial
condition or results of operations of the Company, the Operating
Partnership and the Subsidiaries, taken as a whole.
(r) The Company has never been, is not now, and immediately after
the sale of the Shares under this Agreement will not be, an "investment
company" or an "affiliates person" of or "principal underwriter" for and
"investment company" within the meaning of the Investment Company Act of
1940, as amended
(s) The Company is organized, and has operated, operates and will
continue to operate in a manner so as to qualify as a REIT under the
Code, and the Company's present and contemplated operations, assets and
income continue to meet such requirements.
(t) With the exception of the Registration Rights Agreement, there
are no contracts, agreements or understandings between the Company and
any person granting such person the right to require the Company to file
a registration statement under the Act with respect to any securities of
the Company or to require the Company to include such securities with the
Shares registered pursuant to the Registration Statement.
(u) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus other than as set forth or
contemplated therein (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement), (i) there has not been and
will not have been any change in the capitalization of the Company or the
Operating Partnership, or in the business, properties, business
prospects, condition (financial or otherwise) or results of operations of
the Company, the Operating Partnership and the Subsidiaries, arising for
any reason whatsoever, other than pursuant to the Company's dividend
reinvestment plan, (ii) there has not occurred any material adverse
change or any development involving a prospective material adverse change
in the condition, financial or otherwise, or the earnings, business,
management or operations of the Company, the Operating Partnership and
its Subsidiaries, taken as a whole, (ii) there has not been any material
adverse change or any development involving a prospective material
adverse change in the capital stock or in the long-term debt of the
Company, the Operating Partnership or any Subsidiary and (iii) neither
the Company nor any Subsidiary has incurred any material liability or
obligation, direct or contingent, nor has it entered into nor will it
enter into any material transactions other than pursuant to this
Agreement and the transactions referred to herein, (iv) there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its beneficial interests or by the Operating
Partnership with respect to its OP Units, and, (v) there have been no
acquisitions or other transactions entered into by the Company, the
Operating Partnership, or the Subsidiaries other than those in the
ordinary course of business, which are material with respect to such
entities, taken as a whole, or would result, upon consummation, in any
inaccuracy in the representations contained in Section 6 hereof.
(v) There is no document or contract of a character required to be
described in the Registration Statement or the Prospectus or to be filed
as an exhibit to the Registration Statement which is not described or
filed as required. All such contracts and all contracts relating to any
tax exempt financings to which the Company or any subsidiary is a party
have been duly authorized, executed and delivered by the Company or such
subsidiary, constitute valid and binding agreements of the Company or
such subsidiary and are enforceable against the Company or such
subsidiary in accordance with the terms thereof.
(w) No statement, representation, warranty or covenant made by the
Company or the Operating Partnership in this Agreement or made in any
certificate or documents require by this Agreement to be delivered to the
Underwriters was or will be, when made, inaccurate, untrue or incorrect.
(x) Neither the Company nor any of its trust managers, officers or
controlling persons has taken, directly or indirectly, any action
intended, or which might reasonably be expected, to cause or result,
under the Act or otherwise, in, or which has constituted, stabilization
or manipulation of the price of any security of the Company to facilitate
the sale of resale of the Shares.
(y) No holder of securities of the Company has rights to the
registration of any securities of the Company because of the filing of
the Registration Statement.
(z) The Shares are duly authorized for listing, subject to official
notice of issuance, on the NYSE.
(aa) None of the Company, the Operating Partnership and the
Subsidiaries nor, to the Company's knowledge, any employee or agent of
the Company, the Operating Partnership or any Subsidiary has made any
payment of funds of the Company or any subsidiary or received or retained
any funds in violation of any law, rule or regulation or of a character
required to be disclosed in the Prospectus.
SECTION 7. Indemnification. (a) The Company and the Operating
Partnership, jointly and severally, agree to indemnify and hold harmless
each Underwriter, its directors, its officers and each person, if any,
who controls any Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act from and against any and all losses,
claims, damages, liabilities, and judgments (including, without
limitation, any legal or other expenses incurred in connection with
investigating or defending any matter, including any action, that could
give rise to any such losses, claims, damages, liabilities or judgments,
and any amount paid in settlement of any, action, suit or proceeding or
any claim asserted) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or
any amendment thereto), the Prospectus (or any amendment or supplement
thereto) or any Preliminary Prospectus, 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 not misleading,
except insofar as such losses, claims, damages, liabilities or judgments
are caused by any such untrue statement or omission or alleged untrue
statement or omission based upon information relating to any Underwriter
furnished in writing to the Company by such Underwriter through you
expressly for use therein.
(a) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Operating Partnership, their
respective, trust managers, directors, officers who sign the Registration
Statement and each person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, to
the same extent as the foregoing indemnity from the Company and the
Operating Partnership to such Underwriter but only with reference to
information relating to such Underwriter furnished in writing to the
Company by such Underwriter through you expressly for use in the
Registration Statement (or any amendment thereto), the Prospectus (or any
amendment or supplement thereto) or any Preliminary Prospectus.
(b) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 7(a) or 7(b)
(the "indemnified party"), the indemnified party shall promptly notify
the person against whom such indemnity may be sought (the "indemnifying
party") in writing and the indemnifying party shall assume the defense of
such action, including the employment of counsel reasonably satisfactory
to the indemnified party and the payment of all fees and expenses of such
counsel, as incurred (except that in the case of any action in respect of
which indemnity may be sought pursuant to both Sections 7(a) and 7(b),
the Underwriters shall not be required to assume the defense of such
action pursuant to this Section 7(c), but may employ separate counsel and
participate in the defense thereof, but the fees and expenses of such
counsel, except as provided below, shall be at the expense of such
Underwriter). Any indemnified party shall have the right to employ
separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the
expense of the indemnified party unless (i) the employment of such
counsel shall have been specifically authorized in writing by the
indemnifying party, (ii) the indemnifying party shall have failed to
assume the defense of such action or employ counsel reasonably
satisfactory to the indemnified party or (iii) the named parties to any
such action (including any impleaded parties) include both the
indemnified party and the indemnifying party, and the indemnified party
shall have been advised by such counsel that there may be one or more
legal defenses available to it which are different from or additional to
those available to the indemnifying party (in which case the indemnifying
party shall not have the right to assume the defense of such action on
behalf of the indemnified party). In any such case, the indemnifying
party shall not, in connection with any one action or separate but
substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all indemnified parties and all such
fees and expenses shall be reimbursed as they are incurred. Such firm
shall be designated in writing by Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation, in the case of parties indemnified pursuant to Section 7(a),
and by the Company, in the case of parties indemnified pursuant to
Section 7(b). The indemnifying party shall indemnify and hold harmless
the indemnified party from and against any and all losses, claims,
damages, liabilities and judgments by reason of any settlement of any
action (i) effected with its written consent or (ii) effected without its
written consent if the settlement is entered into more than twenty
business days after the indemnifying party shall have received a request
from the indemnified party for reimbursement for the fees and expenses of
counsel (in any case where such fees and expenses are at the expense of
the indemnifying party) and, prior to the date of such settlement, the
indemnifying party shall have failed to comply with such reimbursement
request. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement or compromise of, or
consent to the entry of judgment with respect to, any pending or
threatened action in respect of which the indemnified party is or could
have been a party and indemnity or contribution may be or could have been
sought hereunder by the indemnified party, unless such settlement,
compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability on claims that are or could have
been the subject matter of such action and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the indemnified party.
(d) To the extent the indemnification provided for in this Section
7 is unavailable to an indemnified party or insufficient in respect of
any losses, claims, damages, liabilities or judgments referred to
therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages,
liabilities and judgments (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 Shares or
(ii) if the allocation provided by clause 7(d)(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 7(d)(i) above but also
the relative fault of the Company and the Operating Partnership on the
one hand and the Underwriters on the other hand in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Operating Partnership on the one hand and the Underwriters on the other
hand shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the
Company, and the total underwriting discounts and commissions received by
the Underwriters, bear to the total price to the public of the Shares, in
each case as set forth in the table on the cover page of the Prospectus.
The relative fault of the Company and the Operating Partnership on the
one hand and the Underwriters on the other hand 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 the
Operating Partnership or the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company, the Operating Partnership and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this
Section 7(d) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments 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 party in connection with investigating or defending any
matter, including any action, that could have given rise to such losses,
claims, damages, liabilities or judgments. 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 Shares underwritten by it 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 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 Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 7(d) are several in
proportion to the respective number of Shares purchased by each of the
Underwriters hereunder and not joint.
(e) The remedies provided for in this Section 7 are not exclusive
and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
SECTION 8. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Firm Shares under this
Agreement are subject to the satisfaction of each of the following
conditions:
(a) The Prospectus shall have been filed as required by Section 1
hereof and (i) no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall be pending or threatened by the Commission, (ii) no order
suspending the effectiveness of the Registration Statement or the
qualification or registration of the Shares under the securities or Blue
Sky laws of any jurisdiction shall be in effect and no proceeding for
such purpose shall be pending before or threatened or contemplated by the
Commission or the authorities of any such jurisdiction, (iii) any request
for additional information on the part of the staff of the Commission or
any such authorities shall have been complied with to the satisfaction of
the staff of the Commission or such authorities, (iv) after the date
hereof, no amendment or supplement to the Registration Statement or the
Prospectus shall have been filed unless a copy thereof was first
submitted to the Underwriters and the Underwriters did not object thereto
in good faith, and (v) the Underwriters shall have received certificates,
dated the Closing Date and signed by the Chief Executive Officer or the
Chairman of the Board of Trustees of the Company and the Chief Financial
Officer of the Company (who may, as to proceedings threatened, rely upon
the best of their information and belief), to the effect of clauses (i),
(ii) and (iii) hereof.
(b) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, (i) there shall not have
been a material adverse change in the general affairs, business, business
prospects, properties, management, condition (financial or otherwise) or
results of operations of the Company, the Operating Partnership and its
Subsidiaries, taken as a whole, whether or not arising from transactions
in the ordinary course of business, in each case other than as set forth
in or contemplated by the Registration Statement and the Prospectus, and
(ii) neither the Company, the Operating Partnership nor any Subsidiary
shall have sustained any material loss or interference with its business
or properties from fire, explosion, flood or other casualty, whether or
not covered by insurance, or from any labor dispute or any court or
legislative or other governmental action, order or decree, which is not
set forth in the Registration Statement and the Prospectus, (iii) there
shall not have been any change or any development involving a prospective
change in the capital stock or the long-term debt of the Company, the
Operating Partnership or any Subsidiary, and (iv) none of the Company,
the Operating Partnership and the Subsidiaries shall have incurred any
liability or obligation, direct or contingent, the effect of which, in
any case described in Sections 8(c)(i), 8(c)(ii), 8(c)(iii) or 8(c)(iv),
in the judgment of the Underwriters, is material or makes it
impracticable or inadvisable to consummate the sale and delivery of the
Shares by the Underwriters on the terms and in the manner contemplated in
the Prospectus.
(c) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there shall have been no
litigation or other proceeding instituted against the Company, the
Operating Partnership or the Subsidiaries or any of their respective
officers or directors in their capacities as such, before or by any
Federal, state or local court, commission, regulatory body,
administrative agency or other governmental body, domestic or foreign, in
which litigation or proceeding an unfavorable ruling, decision or finding
would materially and adversely affect the business, properties, business
prospects, condition (financial or otherwise) or results of operations of
the Company, the Operating Partnership and the Subsidiaries, taken as a
whole.
(d) All the representations and warranties of the Company and the
Operating Partnership contained in this Agreement shall be true and
correct on the Closing Date with the same force and effect as if made on
and as of the Closing Date, and all covenants and agreements contained
herein to be performed on the part of the Company and all conditions
contained herein to be fulfilled or complied with by the Company and the
Operating Partnership at or prior to the Closing Date shall have been
duly performed, fulfilled or complied with.
(e) On or after the date hereof there shall not have occurred any
downgrading, nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change that does
not indicate the direction of the possible change, in the rating of any
of the Company's securities (including, without limitation, the placing
of any securities on negative or developing watch or negative or
developing outlook) by any "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2)
under the Act.
(f) You shall have received on the Closing Date a certificate dated
the Closing Date, signed by Xxxxxxx X. Xxxxx and G. Xxxxxx Xxxxxx, in
their respective capacities as the Chief Executive Officer and Chief
Financial Officer of the Company, in form and substance satisfactory to
the Underwriters, to the effect that:
(i) Each signer of such certificate has carefully examined the
Registration Statement and the Prospectus (including any documents filed
under the Exchange Act and deemed to be incorporated by reference into
the Prospectus) and (A) as of the date of such certificate, such
documents are true and correct in all material respects and do not omit
to state a material fact required to be stated therein or necessary in
order to make the statements therein not untrue or misleading and (B) no
event has occurred as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein not
untrue or misleading in any material respect and there has been no
document required to be filed under the Exchange Act that upon such
filing would be deemed to be incorporated by reference into the
Prospectus that has not been so filed.
(ii) Each of the representations and warranties of the Company
and the Operating Partnership contained in this Agreement were, when
originally made, and are, at the time such certificate is delivered, true
and correct in all material respects.
Company and the Operating Partnership herein on or prior to the
delivery of such certificate has been duly, timely and fully performed
and each condition herein required to be complied with by the Company and
the Operating Partnership on or prior to the date of such certificate has
been duly, timely and fully complied with.
(g) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing
Date, of Liddell, Sapp, Zivley, Hill & XxXxxx, L.L.P., counsel for the
Company, to the effect set forth in Exhibit C attached hereto.
(h) You shall have received on the Closing Date an opinion, dated
the Closing Date, of Xxxxxxx, Procter & Xxxx LLP, counsel for the
Underwriters, to the effect set forth in Exhibit D hereto, which opinion
shall be satisfactory in all respects to the Underwriters.
(i) Concurrently with the execution and delivery of this Agreement,
you shall have received, on the date hereof, a letter in form and
substance satisfactory to you from the Accountants, dated the date
hereof, addressed to you, confirming that they are independent
accountants with respect to the Company as required by the Act and with
respect to the financial statements, pro forma financial statements and
other statistical and numerical information contained in or incorporated
by reference into the Registration Statement and the Prospectus. At the
Closing Date and the Option Closing Date, you shall have received a
letter in form and substance satisfactory to you from Accountants dated
the Closing Date or the Option Closing Date, as the case may be, which
shall confirm, on the basis of a review in accordance with the procedures
set forth in the letter from Accountants, that nothing has come to their
attention during the period of the letter referred to in the prior
sentence to a date specified in the letter not more than three days prior
to the Closing Date or the Option Closing Date which would require any
change in their letter dated the date hereof if it were required to be
dated and delivered at the Closing Date or the Option Closing Date.
(j) The Company shall have delivered to you the agreements
specified in Section 2 hereof which agreements shall be in full force and
effect on the Closing Date.
(k) The Shares shall have been duly listed, subject to official
notice of issuance, on the NYSE.
(l) The Shares shall be qualified for sale in such states as the
Underwriters may reasonably request, each such qualification shall be in
effect and not subject to any stop order or other proceeding on the
Closing Date.
(m) The Company and the Operating Partnership shall not have failed
at or prior to the Closing Date to perform or comply with any of the
agreements herein contained and required to be performed or complied with
by the Company and the Operating Partnership at or prior to the Closing
Date.
(n) The Company shall have furnished to the Underwriters such
certificates, in addition to those specifically mentioned herein, as the
Underwriters may have reasonably requested as to the accuracy and
completeness at the Closing Date of any statement in the Registration
Statement or the Prospectus or any documents filed under the Exchange Act
and deemed to be incorporated by reference into the Registration
Statement or the Prospectus, as to the accuracy at the Closing Date of
the representations and warranties of the Company herein as to the
performance by the Company and the Operating Partnership of its
obligations hereunder or as to the fulfillment of the conditions
concurrent and precedent to the obligations hereunder of the
Underwriters.
(o) The several obligations of the Underwriters to purchase any
Additional Shares hereunder are subject to the delivery to you on the
applicable Option Closing Date of such documents as you may reasonably
request with respect to the good standing of the Company, the due
authorization and issuance of such Additional Shares and other matters
related to the issuance of such Additional Shares.
SECTION 9. Effectiveness of Agreement and Termination. This
Agreement shall become effective upon the execution and delivery of this
Agreement by the parties hereto.
This Agreement may be terminated at any time prior to the Closing
Date by you by written notice to the Company if any of the following has
occurred: (i) any outbreak or escalation of hostilities or other
national or international calamity or crisis or change in economic
conditions or in the financial markets of the United States or elsewhere
that, in your judgment, is material and adverse and, in your judgment,
makes it impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus, (ii) the suspension or material
limitation of trading in securities or other instruments on the NYSE, the
American Stock Exchange, the Chicago Board of Options Exchange, the
Chicago Mercantile Exchange, the Chicago Board of Trade or the Nasdaq
National Market or the limitation on prices for securities or other
instruments on any such exchange or the Nasdaq Automated Quotation
National Market System, or additional material governmental restrictions,
not in force on the date of this Agreement, shall have been imposed upon
trading in securities generally by such exchange or by order of the
Commission or any court or other governmental authority, (iii) the
suspension of trading of any securities of the Company on any exchange or
in the over-the-counter market, (iv) the enactment, publication, decree
or other promulgation of any federal or state statute, regulation, rule
or order of any court or other governmental authority which in your
opinion materially and adversely affects, or will materially and
adversely affect, the business, prospects, financial condition or results
of operations of the Company, the Operating Partnership and the
Subsidiaries, taken as a whole, (v) the declaration of a banking
moratorium by either federal or New York State authorities or (vi) the
taking of any action by any federal, state or local government or agency
in respect of its monetary or fiscal affairs which in your opinion has a
material adverse effect on the financial markets in the United States.
If on the Closing Date or on an Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase
the Firm Shares or Additional Shares, as the case may be, which it or
they have agreed to purchase hereunder on such date and the aggregate
number of Firm Shares or Additional Shares, as the case may be, which
such defaulting Underwriter or Underwriters, as the case may be, agreed
but failed or refused to purchase is not more than one-tenth of the total
number of Shares to be purchased on such date by all Underwriters, each
non-defaulting Underwriter shall be obligated severally, in the
proportion which the number of Firm Shares set forth opposite its name in
Schedule I bears to the total number of Firm Shares which all the
non-defaulting Underwriters, as the case may be, have agreed to purchase,
or in such other proportion as you may specify, to purchase the Firm
Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters, as the case may be, agreed but failed or
refused to purchase on such date; provided that in no event shall the
number of Firm Shares or Additional Shares, as the case may be, which any
Underwriter has agreed to purchase pursuant to Section 2 hereof be
increased pursuant to this Section 9 by an amount in excess of one-ninth
of such number of Firm Shares or Additional Shares, as the case may be,
without the written consent of such Underwriter. If on the Closing Date
any Underwriter or Underwriters shall fail or refuse to purchase Firm
Shares and the aggregate number of Firm Shares with respect to which such
default occurs is more than one-tenth of the aggregate number of Firm
Shares to be purchased by all Underwriters and arrangements satisfactory
to you and the Company for purchase of such Firm Shares are not made
within 48 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter and the Company.
In any such case which does not result in termination of this Agreement,
either you or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and the
Prospectus or any other documents or arrangements may be effected. If,
on an Option Closing Date, any Underwriter or Underwriters shall fail or
refuse to purchase Additional Shares and the aggregate number of
Additional Shares with respect to which such default occurs is more than
one-tenth of the aggregate number of Additional Shares to be purchased on
such date, the non-defaulting Underwriters shall have the option to (i)
terminate their obligation hereunder to purchase such Additional Shares,
or (ii) purchase not less than the number of Additional Shares that such
non-defaulting Underwriters would have been obligated to purchase on such
date in the absence of such default. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of any such Underwriter under this Agreement.
SECTION 10. Miscellaneous. Notices given pursuant to any provision
of this Agreement shall be addressed as follows: (i) if to the Company,
to Camden Property Trust, 0000 Xxxxxxxxx Xxxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxx 00000, and (ii) if to any Underwriter, c/x Xxxxxxxxx, Lufkin &
Xxxxxxxx Securities Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Syndicate Department, or in any case to such other
address as the person to be notified may have requested in writing.
The respective indemnities, contribution agreements,
representations, warranties, agreements and covenants and other
statements of the Company and agreements of the Underwriters set forth in
or Section 7 hereof shall remain operative and in full force and effect,
and will survive delivery of and payment for the Shares, regardless of
(i) any investigation, or statement as to the results thereof, made by or
on behalf of any Underwriter, the officers or directors of any
Underwriter, any person controlling any Underwriter, the Company, the
officers or directors of the Company or any person controlling the
Company, (ii) acceptance of the Shares and payment for them hereunder and
(iii) termination of this Agreement.
If for any reason the Shares are not delivered by or on behalf of
the Company as provided herein (other than as a result of any termination
of this Agreement pursuant to Section 9), the Company agrees to reimburse
the Underwriters for all out-of-pocket expenses (including the fees and
disbursements of counsel) incurred by them. Notwithstanding any
termination of this Agreement, the Company shall be liable for all
expenses which it has agreed to pay pursuant to Section 5(k) hereof. The
Company also agrees to reimburse the Underwriters, their directors and
officers and any persons controlling any of the Underwriters for any and
all fees and expenses (including, without limitation, the fees
disbursements of counsel) incurred by them in connection with enforcing
their rights hereunder (including, without limitation, pursuant to
Section 7 hereof).
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the
Underwriters, the Underwriters' directors and officers, any controlling
persons referred to herein, the Company's directors and the Company's
officers who sign the Registration Statement and their respective
successors and assigns, all as and to the extent provided in this
Agreement, and no other person shall acquire or have any right under or
by virtue of this Agreement. The term "successors and assigns" shall not
include a purchaser of any of the Shares from any of the Underwriters
merely because of such purchase.
This Agreement shall be governed and construed in accordance with
the laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
In case any provision in this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the Underwriters.
Very truly yours,
CAMDEN PROPERTY TRUST
By: /s/ G. Xxxxxx Xxxxxx
-------------------------
Title: G. Xxxxxx Xxxxxx
Sr. Vice President and
Chief Financial Officer
CAMDEN OPERATING, L.P.
By: CPT-GP, Inc.
Its General Partner
By: /s/ G. Xxxxxx Xxxxxx
-----------------------------
Title: G. Xxxxxx Xxxxxx
Sr. Vice President and
Chief Financial Officer
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
Acting severally on behalf of
themselves and the
Underwriters named in
Schedule I hereto
By: XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By: /s/ Xxxxxxx X. Xxxx
------------------------
Title: Xxxxxxx X. Xxxx
Managing Director
SCHEDULE I
Number of Firm Shares
Underwriters to be Purchased
------------------------------------------ ---------------------
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities 2,422,581
Corporation
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx 1,777,419
Incorporated ---------
Total 4,200,000
EXHIBIT A
July 15, 1997
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
c/x Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Camden Property Trust
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Dear Sirs:
The undersigned understands that Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation and Xxxxxxx Xxxxx & Co. (the "Underwriters"),
propose to enter into an Underwriting Agreement with Camden Property
Trust (the "Company"), providing for the public offering (the "Public
Offering") of shares of beneficial interest, par value $0.01 per share
(the "Common Shares") of the Company.
To induce the Underwriters that may participate in the Public
Offering to continue their efforts in connection with the Public
Offering, the undersigned, during the period commencing on the date
hereof and ending 90 days after the date of the final prospectus relating
to the Public Offering:
(i) agrees not to (x) offer, pledge, sell, contract to sell, sell
any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, or otherwise
transfer or dispose of, directly or indirectly, any Common Shares, any
securities convertible into or exercisable or exchangeable for Common
Shares (including without limitation Common Shares or securities
convertible into or exercisable or exchangeable for Common Shares which
may be deemed to be beneficially owned by the undersigned in accordance
with the rules and regulations of the Securities and Exchange Commission)
or any units of limited partnership of Camden Operating, L.P. ("OP
Units") or (y) enter into any swap or other arrangement that transfers
all or a portion of the economic consequences associated with the
ownership of any Common Shares or OP Units (regardless of whether any of
the transactions described in clause (x) or (y) is to be settled by the
delivery of Common Shares, OP Units, or such securities, in cash or
otherwise), without prior written consent of Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation; and
(ii) agrees not to make any demand for, or exercise any right with
respect to, the registration of Common Shares, any securities convertible
into or exercisable or exchangeable for Common Shares or any OP Units,
without the prior written consent of Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation.
The undersigned hereby represents and warrants that the undersigned
has full power and authority to enter into the agreements set forth
herein, and that, upon request, the undersigned will execute any
additional documents necessary or desirable in connection with the
enforcement hereof. All authority herein conferred or agreed to be
conferred shall survive the death or incapacity of the undersigned and
any obligations of the undersigned shall be binding upon the heirs,
personal representatives, successors, and assigns of the undersigned.
Very truly yours,
----------------------------
--------------------------------
--------------------------------
--------------------------------
--------------------------------
Social Security or Taxpayer ID No. ___________________
Number of Common Shares owned: __________________
Number of options, warrants or notes or other securities that
are convertible into, or exercisable or exchangeable for,
Common Shares: _________________
Number of OP Units owned: ________________
EXHIBIT B
SUBSIDIARIES OF CAMDEN PROPERTY TRUST
Camden Development, Inc.
CPT Arizona, Inc.
Camden Colorado, Inc.
Camden Connection, Inc.
Teleserve, Inc.
CPT Texas, Inc.
Camden Bay Crest, Inc.
Xxxxxx Xxxx Lakes, Inc.
Camden Xxxxx Place, Inc.
Camden Roseland Place, Inc.
Camden Wilshire Place, Inc.
Camden Acquisition, Inc.
Camden Building, Inc.
Camden Housing, Inc.
Camden Subsidiary, Inc.
CPT-GP, Inc.
CPT-LP, Inc.
EXHIBIT C
LIDDELL, SAPP, ZIVLEY, HILL & XXXXXX, LLP OPINION
1. The Company has been duly formed and is validly existing as a real
estate investment trust ("REIT") with transferable shares of beneficial
interest under the laws of the State of Texas, with power and authority
to own, lease or operate its properties and conduct its business as
described in the Prospectus. The Company is qualified for the
transaction of business and is in good standing under the laws of each
other jurisdiction in which it currently owns property, or conducts any
business, so as to require such qualification, except where the failure
to be so qualified or in good standing does not have a material adverse
effect on the business, properties, financial position or results of the
Company, the Operating Partnership and the Subsidiaries, taken as a
whole. Except for stock or partnership interests of the Operating
Partnership and the Subsidiaries or as described in the Registration
Statement or Prospectus, the Company does not own, and at the Closing
Date will not own, directly or indirectly, any equity or other interest
in, or rights to acquire, an equity or other interest in any corporation,
partnership, trust, joint venture or other entity.
2. Each Subsidiary and the Operating Partnership has full power and
authority to own, lease and operate their respective properties and
conduct their respective business as described in the Registration
Statement and the Prospectus, have been duly organized and are validly
existing as corporations or limited partnerships, as the case may be,
under the laws of their states of organization as set forth on Appendix A
hereto, and have been duly qualified as foreign corporations or limited
partnerships, as the case may be, for the transaction of business, and,
if applicable, is in good standing under the laws of each jurisdiction in
which they own or lease properties or conduct business so as to require
such qualification, except where the failure to be so qualified or in
good standing does not have a material adverse effect on the business,
properties, financial position or results of the Company, the Operating
Partnership and the Subsidiaries, taken as a whole.
3. All the outstanding shares of beneficial interest of the Company have
been duly authorized and validly issued and are fully paid, non-
assessable and not subject to any preemptive or similar rights. The
Shares have been duly authorized and, when issued and delivered to the
Underwriters against payment therefor as provided by the Underwriting
Agreement, will be validly issued, fully paid and non-assessable, and the
issuance of such Shares will not be subject to any preemptive or similar
rights. The authorized shares of beneficial interest conforms as to
legal matters to the description thereof contained in the Registration
Statement or Prospectus. The Company has authorized and outstanding
shares of beneficial interest as set forth under the caption
"Capitalization" in the Prospectus.
4. All the outstanding OP Units and all the outstanding shares of
capital stock or limited partnership units of each Subsidiary, as the
case may be, have been duly authorized and validly issued, and except as
otherwise disclosed in the Registration Statement or Prospectus, are
owned by the Company, directly or indirectly through one or more
Subsidiaries, free and clear of any security interest, claim, lien,
encumbrance or adverse interest of any nature.
5. The Company and the Operating Partnership have full corporate or
partnership power and authority, as applicable, to enter into the
Underwriting Agreement. The Underwriting Agreement has been duly
authorized, executed and delivered by the Company and the Operating
Partnership and constitutes a valid and binding agreement of the Company
and the Operating Partnership.
6. To our knowledge, the execution, delivery and performance of the
Underwriting Agreement and the consummation of the transactions
contemplated thereby do not and will not (i) conflict with or constitute
a breach of any of the terms or provisions of, or a default under or
result in the creation or imposition of any lien, charge or encumbrance
upon any of the assets of the Company, the Operating Partnership or the
Subsidiaries pursuant to the terms or provisions of, the charter or
by-laws of the Company, the limited partnership agreement of the
Operating Partnership or the charter or by-laws of any Subsidiary or any
indenture, loan agreement, mortgage, deed of trust, lease or other
agreement or instrument that is material to the Company, the Operating
Partnership and the Subsidiaries, taken as a whole, to which the Company,
the Operating Partnership or any Subsidiary is a party or by which the
Company, the Operating Partnership or any Subsidiary or their respective
property is bound or to which any of the properties or assets of the
Company, the Operating Partnership or any Subsidiary are subject, or (ii)
violate or conflict with any applicable law or any rule, regulation,
judgment, order or decree of any court or any governmental body or agency
having jurisdiction over the Company, the Operating Partnership, any
other Subsidiary or their respective properties or assets.
7. The conditions for the use of a registration statement on Form S-3
set forth in the General Instructions on Form S-3 have been satisfied and
the Company is entitled to use such form for the transactions
contemplated by the Underwriting Agreement. The Registration Statement
(Registration No. 333-24637) on Form S-3 relating to the Shares was
declared effective. No stop order suspending the effectiveness of the
Registration Statement is in effect, and to such knowledge no proceedings
for such purpose are pending before or threatened by the Commission. The
Prospectus has been filed with Commission pursuant to Rule 424(b) under
the Act.
"Descriptions of Common Shares," Description of Preferred Shares,"
Description of Securities Warrants," "Description of Debt Securities."
and "description of Notes" and each document incorporated by reference
from the Company's Report on Form 10-Q for the quarter ended March 31,
1997 and Report on Form 8-K/A, dated June 13, 1997 and in the Prospectus,
insofar as such statements constitute a summary of legal matters
documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters, documents or
proceedings. The description in the Registration Statement and the
Prospectus of contracts and other documents which are filed as exhibits
to the Registration Statement are accurate in all material respects and
fairly present the information required to be shown. To our knowledge,
there are no statutes or legal or governmental proceedings required to be
described in the Prospectus which are not described therein.
9. To the best of our knowledge, none of the Company, the Operating
Partnership and the Subsidiaries is in violation of its respective
charter, limited partnership agreement or by-laws nor is any of them in
default in the performance of any obligation, agreement, covenant or
condition contained in any indenture, loan agreement, mortgage, deed of
trust, lease or other agreement or instrument that is material to the
Company, the Operating Partnership and the Subsidiaries, taken as a
whole, to which the Company, the Operating Partnership or any Subsidiary
is a party, or by which the Company, the Operating Partnership, any
Subsidiary or their respective properties are bound.
10. No consent, approval, authorization, registration or other order of,
or qualification with, any court or governmental body or agency is
required for the consummation by the Company of the transactions
contemplated by the Underwriting Agreement, except such as have been
obtained under the Act and such as may be required under state securities
or Blue Sky laws in connection with the purchase and distribution by the
Underwriters of the Shares.
11. Other than as set forth or contemplated in the Registration
Statement or Prospectus, to our knowledge there are no legal or
governmental proceedings pending or threatened to which the Company, the
Operating Partnership or any Subsidiary is or may be a party or to which
any of their respective properties or assets is or may be subject which,
if determined adversely to the Company, the Operating Partnership or any
Subsidiary, could individually or in the aggregate reasonably be expected
to have a material adverse effect on the general affairs, business,
prospects, management, properties, financial position, shareholders'
equity or results of operations of the Company; to the best of our
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others. To our knowledge there
are no other 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 so
described or filed as required.
12. To our knowledge, each of the Company, the Operating Partnership and
the Subsidiaries has such permits, licenses, consents, exemptions,
franchises, authorizations and other approvals (each, an "Authorization")
of, and has made all filings with and notices to, all governmental or
regulatory authorities and self-regulatory organizations and all courts
and other tribunals, as are necessary to own, lease, license and operate
its respective properties and to conduct their respective businesses,
except where the failure to have any such Authorization or to make any
such filing or notice would not, singly or in the aggregate, have a
material adverse effect on the business, prospects, financial condition
or results of operations of the Company, the Operating Partnership and
the Subsidiaries, taken as a whole.
13. The Company has never been, is not now, and immediately after the
sale of the Shares will not be, an "investment company" or an "affiliates
person" of or "principal underwriter" for and "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
14. The Shares have been duly authorized for listing by the NYSE upon
official notice of issuance.
15. The Company met the requirements for qualification and taxation as a
REIT for the taxable years 1993 through 1996. The Company's diversity of
equity ownership, operations through the date hereof and proposed method
of operation for future periods will allow it to qualify as a REIT for
the taxable year 1997. The discussion contained under the caption
"Certain Federal Income Tax Considerations" in the Prospectus accurately
reflects existing law and fairly addresses the material Federal income
tax issues described therein.
16. To our knowledge, with the exception of the Registration Rights
Agreement, dated April 15, 1997, among the Company, the Operating
Partnership and certain persons named therein, there are no contracts,
agreements or understandings between the Company and any person granting
such person the right to require the Company to file a registration
statement under the Act with respect to any securities of the Company or
to require the Company to include such securities with the Shares
registered pursuant to the Registration Statement.
17. Each document, if any, filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus (except for the financial
statements and other financial data included or to be included or
incorporated by reference or to be incorporated by reference therein)
complied when so filed as to form with the Exchange Act, as applicable.
The Registration Statement and the Prospectus, and any amendment or
supplement thereto (except for the financial statements and other
financial data included or to be included or incorporated by reference or
to be incorporated by reference therein), when filed with the Commission
and at the Closing Date, and if later, the Option Closing Date, including
each document incorporated by reference therein, (i) complied or will
comply in all material respects with the requirements of the Act or the
Exchange Act, as applicable, and contained or will contain all statements
required to be stated therein in accordance with the Act or the Exchange
Act, as applicable. We have no reason to believe that at the time the
Registration Statement became effective, it or the prospectus included
therein (except for the financial statements included or to be included
or incorporated by reference or to be incorporated by reference therein)
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements not misleading. We have no reason to believe that the
Prospectus, as amended or supplemented (except for the financial
statements included or to be included or incorporated by reference or to
be incorporated by reference therein), as of its date contained or as of
the date hereof contains any untrue statement of a material fact or
omitted or omits to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
EXHIBIT D
GOODWIN, PROCTER & XXXX, LLP OPINION
1. The Shares have been duly authorized and, when issued and delivered
to the Underwriters against payment therefore as provided by the
Underwriting Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Shares will not be subject to
any preemptive or similar rights.
2. The authorized shares of beneficial interest of Camden Property Trust
conform as to legal matters in all material respects to the description
thereof contained in the Prospectus.
3. The statements in the Registration Statement or the Prospectus under
the captions "Descriptions of Common Shares" and "Underwriting", insofar
as such statements constitute a summary of legal matters documents or
proceedings referred to therein, fairly present the information called
for with respect to such legal matters, documents or proceedings; the
description in the Registration Statement and the Prospectus of contracts
and other documents which are filed as exhibits to the Registration
Statement are accurate in all material respects and fairly present the
information required to be shown; and to our knowledge, there are no
statutes or legal or governmental proceedings required to be described in
the Prospectus which are not described therein.
4. The Registration Statement and the Prospectus, and any amendment or
supplement thereto (except for the financial statements and other
financial data included or to be included or incorporated by reference or
to be incorporated by reference therein), when filed with the Commission
and at the Closing Date, and if later, the Option Closing Date, including
each document incorporated by reference therein, (i) complied or will
comply as to form in all material respects with the requirements of the
Act or the Exchange Act, as applicable. We have no reason to believe
that: (i) at the time the Registration Statement became effective it or
the prospectus included therein (except for the financial statements
included or to be included or incorporated by reference or to be
incorporated by reference therein) contained any untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein, not misleading. (ii) the Prospectus, as amended or
supplemented (except for the financial statements included or to be
included or incorporated by reference or to be incorporated by reference
therein) contains any untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading.
