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EXHIBIT 1.03
CRESCENT REAL ESTATE EQUITIES COMPANY
(a Texas real estate investment trust)
Preferred Shares of Beneficial Interest,
Common Shares of Beneficial Interest,
and Common Share Warrants
INTERNATIONAL PURCHASE AGREEMENT
April 22, 1997
XXXXXXX XXXXX INTERNATIONAL
00 Xxxxxxxxxx Xxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Ladies and Gentlemen:
Crescent Real Estate Equities Company, a Texas real estate investment
trust (the "COMPANY"), proposes to issue and sell its preferred shares of
beneficial interest, $.01 par value per share ("PREFERRED SHARES"), common
shares of beneficial interest, $.01 par value per share ("COMMON SHARES"), and
warrants for the purchase of Common Shares ("WARRANTS"), from time to time in
one or more offerings on terms to be determined at the time of sale. Each
series of Preferred Shares may vary as to the specific number of shares in the
series, title, stated value, liquidation preference, issuance price, ranking,
dividend rate or rates (or method of calculation), dividend payment dates, any
redemption or sinking fund requirements, any conversion provisions and any
other variable terms as set forth in the Company's Restated Declaration of
Trust (the "DECLARATION OF TRUST") or any articles supplementary to the
Company's Declaration of Trust establishing the preferences and rights of such
series of Preferred Shares. Each series of Warrants also may vary as to the
exercise time and price and other variable terms as set forth in the applicable
Warrant Agreement. As used herein, "you" and "your," unless the context
otherwise requires, means the parties to whom this Purchase Agreement (the
"AGREEMENT") is addressed together with the other parties, if any, identified
in the applicable International Terms Agreement (as hereinafter defined) as
additional co-managers with respect to International Securities (as hereinafter
defined) purchased pursuant hereto.
At such time, if any, as the Company determines to make an offering of
Preferred Shares, Common Shares or Warrants through you or through an
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underwriting syndicate managed by you, the Company will enter into an agreement
(the "INTERNATIONAL TERMS AGREEMENT") substantially in the form of Annex A
hereto providing for the sale of such securities (the "INTERNATIONAL
SECURITIES") to, and the purchase and offering thereof by, you and such other
underwriters, if any, as are selected by you that have authorized you to enter
into such International Terms Agreement on their behalf (the "INTERNATIONAL
UNDERWRITERS," which term shall include you, whether acting alone in the sale
of the International Securities or as a member of an underwriting syndicate,
and any International Underwriter substituted pursuant to Section 10 hereof).
The International Terms Agreement relating to an offering of International
Securities shall specify the number of International Securities of each class
or series to be initially issued (the "INITIAL INTERNATIONAL SECURITIES"), the
names of the International Underwriters participating in the offering (subject
to substitution as provided in Section 10 hereof), the number of Initial
International Securities that each International Underwriter severally agrees
to purchase, the names of the International Underwriters acting as co-managers,
if any, in connection with the offering, the price at which the Initial
International Securities are to be purchased by the International Underwriters
from the Company, the initial public offering price, if any, of the Initial
International Securities, the time and place of delivery and payment, any
delayed delivery arrangements and any other variable terms of the Initial
International Securities (including, but not limited to, current ratings,
designations, liquidation preferences, conversion, exchange or exercise
provisions, redemption provisions, sinking fund requirements and exercise
prices and dates). In addition, each International Terms Agreement shall
specify whether the Company has agreed to grant to the International
Underwriters an option to purchase additional International Securities to cover
over-allotments, if any, and the number of International Securities subject to
such option (the "INTERNATIONAL OPTION SECURITIES"). As used herein, the term
"INTERNATIONAL SECURITIES" includes the Initial International Securities and
any International Option Securities agreed to be purchased by the International
Underwriters as provided in the applicable International Terms Agreement. The
International Terms Agreement shall be substantially in the form of Exhibit A
hereto, but may take the form of an exchange of any standard form of written
communication between you and the Company. Each offering of International
Securities through you or through an underwriting syndicate managed by you will
be governed by this Agreement, as supplemented by the applicable International
Terms Agreement, and such International Terms Agreement shall inure to the
benefit of and be binding upon each International Underwriter participating in
the offering of such International Securities.
It is understood that the Company is concurrently entering into an
agreement dated the date hereof (the "U.S. PURCHASE AGREEMENT") providing for
the sale by the Company of Securities (the "U.S. UNDERWRITTEN SECURITIES")
through arrangements with certain underwriters in the United States (the "U.S.
UNDERWRITERS") for whom Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
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("MLPFS") and such other parties, if any, as are identified in the applicable
U.S. Terms Agreement (as hereinafter defined) as additional co-managers with
respect to the U.S. Underwritten Securities are acting as such, and the grant
by the Company to the U.S. Underwriters of an option to purchase additional
U.S. Underwritten Securities (the "U.S. OPTION SECURITIES") solely to cover
over-allotments. The initial public offering price and the purchase price with
respect to the U.S. Underwritten Securities to be initially issued (the
"INITIAL U.S. SECURITIES") are to be set forth in a separate instrument (the
"U.S. TERMS AGREEMENT"), the form of which is to be attached to the U.S.
Purchase Agreement. It is understood that the Company is not obligated to
sell, and the International Underwriters are not obligated to purchase, any
Initial International Securities unless all of the Initial U.S. Securities are
contemporaneously purchased by the U.S. Underwriters.
The International Underwriters and the U.S. Underwriters are hereinafter
collectively referred to as the "Underwriters." The Initial International
Securities and the Initial U.S. Securities are hereinafter collectively
referred to as the "Initial Securities." The International Option Securities
and the U.S. Option Securities are hereinafter collectively referred to as the
"Option Securities." The International Securities and the U.S. Underwritten
Securities are hereinafter collectively referred to as the "Securities."
The Company understands that the International Underwriters and the U.S.
Underwriters will enter into an Intersyndicate Agreement (the "INTERSYNDICATE
AGREEMENT") providing for the coordination of certain transactions among the
International Underwriters and the U.S. Underwriters under the direction of
MLPFS with respect to any concurrent offering of U.S. Underwritten Securities
and International Securities. The Company further understands that, except as
otherwise may be agreed by the U.S. Underwriters and the International
Underwriters in connection with any particular offering of Securities, it is
understood that the U.S. Underwriters may offer and sell Securities pursuant to
a U.S. Terms Agreement outside of the United States and Canada.
The Company has filed with the United States Securities and Exchange
Commission (the "COMMISSION") a registration statement on Form S-3 (No. 333-
21905) for the registration of certain Preferred Shares, Common Shares and
Warrants (collectively, the "REGISTERED SECURITIES") under the Securities Act
of 1933, as amended (the "1933 ACT"), and the offering thereof from time to
time in accordance with Rule 415 of the rules and regulations of the Commission
under the 1933 Act (the "1933 ACT REGULATIONS"), and the Company has filed such
amendment or amendments thereto as may have been required prior to the
execution of the applicable International Terms Agreement. Such registration
statement, as amended, has been declared effective by the Commission. Two
prospectuses are to be used in connection with the offering and sale of the
Registered Securities, one relating to the International Securities (the
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"INTERNATIONAL PROSPECTUS") and one relating to the U.S. Underwritten
Securities (the "U.S. PROSPECTUS"). Such registration statement and the two
prospectuses constituting parts thereof (including, in each case, any
information deemed to be a part thereof pursuant to Rule 430A(b) of the 1933
Act Regulations and any prospectus supplement relating to the offering of the
Registered Securities pursuant to Rule 415 of the 1933 Act regulations (a
"PROSPECTUS SUPPLEMENT")), as from time to time amended or supplemented
pursuant to the 1933 Act or otherwise, are hereinafter referred to as the
"REGISTRATION STATEMENT," the "INTERNATIONAL PROSPECTUS" and the "U.S.
PROSPECTUS," respectively, and the International Prospectus and U.S. Prospectus
are hereinafter collectively referred to as the "PROSPECTUSES," and each
individually as a "PROSPECTUS," except that if any revised prospectus shall be
provided to the International Underwriters or the U.S. Underwriters by the
Company for use in connection with the offering of Registered Securities that
differs from the Prospectus on file at the Commission at the time the
Registration Statement became effective (whether or not such revised prospectus
is required to be filed by the Company pursuant to Rule 424(b) of the 1933 Act
Regulations), the terms "INTERNATIONAL PROSPECTUS" and "U.S. PROSPECTUS" shall
refer to each such revised prospectus from and after the time it is first
provided to the International Underwriters or the U.S. Underwriters, as the
case may be, for such use; and except further that a Prospectus Supplement
shall be deemed to have supplemented a Prospectus only with respect to the
offering of Registered Securities to which it relates. All references in this
Agreement to financial statements and schedules and other information that are
"contained," "included" or "stated" in the Registration Statement or a
Prospectus (and all other references of like import) shall be deemed to mean
and include all such financial statements and schedules and other information
that are or are deemed to be incorporated by reference in the Registration
Statement or the Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration Statement or a
Prospectus shall be deemed to mean and include the filing of any document under
the 1934 Act that is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be. If the Company
elects to rely on Rule 434 under the 1933 Act Regulations, all references to a
Prospectus shall be deemed to include, without limitation, the form of
prospectus and the abbreviated term sheet, taken together, provided to the
International Underwriters or the U.S. Underwriters by the Company in reliance
on Rule 434 under the 1933 Act (the "RULE 434 PROSPECTUS"). If the Company
files a registration statement to register a portion of its Common Shares
issuable upon exercise of Warrants (the "WARRANT SHARES") and relies on Rule
462(b) for such registration to become effective upon filing with the
Commission (the "RULE 462 REGISTRATION STATEMENT"), then any reference to
"Registration Statement" herein shall be deemed to be to both the registration
statement referred to above (No. 333-21905) and the Rule 462 Registration
Statement, as each such registration statement may be amended pursuant to the
1933 Act.
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SECTION 1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE OPERATING
PARTNERSHIP.
(a) The Company and Crescent Real Estate Equities Limited
Partnership, a Delaware limited partnership (the "OPERATING
PARTNERSHIP"), jointly and severally, represent and warrant to you as of
the date hereof and to you and each of the other International
Underwriters named in the applicable International Terms Agreement as of
the date thereof (in each case, an "INTERNATIONAL REPRESENTATION DATE"),
as follows:
(i) The Registration Statement and the International
Prospectus, at the time the Registration Statement became
effective, complied, and at each International Representation
Date will comply, in all material respects, with the requirements
of the 1933 Act and the 1933 Act Regulations; the Registration
Statement, at the time the Registration Statement became
effective, did not, and as of each International Representation
Date will not, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The
International Prospectus, as of the date hereof does, and as of
each International Representation Date (unless the term
"Prospectus" refers to a prospectus that has been provided to the
International Underwriters by the Company for use in connection
with the offering of Registered Securities that differs from a
Prospectus on file at the Commission at the time the Registration
Statement became effective, in which case at the time it is first
provided to the International Underwriters for such use) and at
Closing Time and each Date of Delivery referred to in Sections
2(b) and 2(c) hereof, will comply in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations
and, as of the date hereof does not, and as of each International
Representation Date will not, contain an untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however,
that the representations and warranties in this paragraph shall
not apply to statements in or omissions from the Registration
Statement or the International Prospectus made in reliance upon
and in conformity with written information furnished to the
Company through you specifically for inclusion in the
Registration Statement or the International Prospectus.
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(ii) No stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued, and
no proceeding for that purpose has been instituted or, to the
knowledge of the Company or the Operating Partnership, threatened
by the Commission or by the state securities authority of any
jurisdiction. No order preventing or suspending the use of the
International Prospectus has been issued, and no proceeding for
that purpose has been instituted or, to the knowledge of the
Company or the Operating Partnership, threatened by the
Commission or by the state securities authority of any
jurisdiction.
(iii) Each of Xxxxxx Xxxxxxxx LLP, the accounting firm
whose report on the financial statements and supporting schedule
of the Company is included in the Registration Statement, and any
other accounting firm whose report on financial statements is
included in the Registration Statement, is an independent public
accountant as required by the 1933 Act and the 1933 Act
Regulations.
(iv) The financial statements (including the notes
thereto) included in the Registration Statement and the
International Prospectus present fairly the financial position of
the respective entity or entities presented therein at the
respective dates indicated and the results of their operations
for the respective periods specified, and except as otherwise
stated in the Registration Statement, said financial statements
have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis. The
supporting schedule included in the Registration Statement
presents fairly the information required to be stated therein.
The financial information and data included in the Registration
Statement and the International Prospectus present fairly the
information included therein and have been prepared on a basis
consistent with that of the financial statements included in the
Registration Statement and the International Prospectus and the
books and records of the respective entities presented therein.
The pro forma financial information included in the International
Prospectus has been prepared in accordance with the applicable
requirements of Rules 11-01 and 11-02 of Regulation S-X under the
1933 Act and other 1933 Act Regulations and American Institute of
Certified Public Accountants ("AICPA") guidelines with respect to
pro forma financial information and includes all adjustments
necessary to present fairly the pro forma financial position of
the respective
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entity or entities presented therein at the respective dates
indicated and the results of their operations for the respective
periods specified. Other than the historical and pro forma
financial statements (and schedule) included therein, no other
historical or pro forma financial statements (or schedules) are
required by the 1933 Act or the 1933 Act Regulations to be
included in the Registration Statement. Except as reflected or
disclosed in the financial statements included in the
Registration Statement or otherwise set forth in the
International Prospectus, none of the Company, the Operating
Partnership, any of the Subsidiaries or the Residential
Development Corporations (as such terms are hereinafter defined)
is subject to any material indebtedness, obligation, or
liability, contingent or otherwise.
(v) Since the respective dates as of which information
is given in the Registration Statement and the International
Prospectus, except as otherwise stated therein, (A) there has
been no material adverse change in the condition, financial or
otherwise, or in the earnings, assets, business affairs or
business prospects of the Company, the Operating Partnership, the
Subsidiaries and the Residential Development Corporations,
considered as one enterprise, whether or not arising in the
ordinary course of business, (B) no material casualty loss or
material condemnation or other material adverse event with
respect to any real property or improvements thereon owned or
leased by any of the Company, the Operating Partnership, any of
its Subsidiaries or any of the Residential Development
Corporations), including any property underlying indebtedness
held by the Company, (each individually a "PROPERTY" and
collectively, the "PROPERTIES"), the Operating Partnership, any
of the Subsidiaries or any of the Residential Development
Corporations, has occurred that is material to the Company, the
Operating Partnership, the Subsidiaries and the Residential
Development Corporations considered as one enterprise, (C) there
have been no acquisitions or other transactions entered into by
the Company, the Operating Partnership, any Subsidiary or any
Residential Development Corporation other than those in the
ordinary course of business that are material with respect to
such entities, considered as one enterprise, or would result in
any inaccuracy in the representations contained in Section
1(a)(iv) above, (D) except as described in the International
Prospectus and except for regular quarterly dividends or
distributions on the Common Shares, there has been no dividend or
distribution of any kind declared, paid or
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made by the Company, or by the Operating Partnership with respect
to its partnership interests, and (E) there has been no change in
the capital stock of the Company or its Subsidiaries or the
Residential Development Corporations or the partnership interests
of the Operating Partnership, or any increase in the indebtedness
of the Company, the Operating Partnership, the Subsidiaries or
the Residential Development Corporations that is material to such
entities, considered as one enterprise.
(vi) The Company has been duly formed as a real estate
investment trust under the laws of the State of Texas with power
and authority to own, lease and operate its properties, to
conduct the business in which it is engaged or proposes to engage
as described in the International Prospectus and to enter into
and perform its obligations under this Agreement. According to
the County Clerk of Tarrant County, Texas, the Restated
Declaration of Trust of the Company is recorded in Volume 12645,
beginning at Page 1811, in the records of the County Clerk. The
Restated Declaration of Trust is in effect, and no dissolution,
revocation or forfeiture proceedings regarding the Company have
been commenced. The Company is duly qualified as a foreign
organization to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not have a
material adverse effect on the condition, financial or otherwise,
or the earnings, assets, business affairs or business prospects
of the Company, the Operating Partnership, the Subsidiaries and
the Residential Development Corporations considered as one
enterprise.
(vii) The Operating Partnership has been duly formed and
is validly existing as a limited partnership in good standing
under the Delaware Revised Uniform Limited Partnership Act (the
"DELAWARE ACT") with partnership power and authority to own,
lease and operate its properties, to conduct the business in
which it is engaged or proposes to engage as described in the
Prospectus and to enter into and perform its obligations under
this Agreement. The Operating Partnership is duly qualified or
registered as a foreign partnership and is in good standing in
each jurisdiction in which such qualification or registration is
required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to
so qualify or register would not have a material adverse effect
on the condition, financial or otherwise, or the earnings,
assets,
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business affairs or business prospects of the Company, the
Operating Partnership, the Subsidiaries and the Residential
Development Corporations considered as one enterprise. The First
Amended and Restated Agreement of Limited Partnership of the
Operating Partnership, as amended (the "PARTNERSHIP AGREEMENT"),
is a valid and binding agreement enforceable in accordance with
its terms. At Closing Time (as hereinafter defined), Crescent
Real Estate Equities, Ltd., a Delaware corporation ("CGP, INC."),
a wholly owned subsidiary of the Company, will be the sole
general partner of the Operating Partnership and will be the
holder of one percent (1%) of the interests in the Operating
Partnership. Entities in which the Company directly or
indirectly has a majority ownership interest are hereinafter
referred to as the "SUBSIDIARIES," and each, individually, as a
"SUBSIDIARY." Houston Area Development Corp., a Texas
corporation, Mira Vista Development Corp., a Texas corporation,
and Crescent Development Management Corp., a Delaware
corporation, in which the Company owns no voting securities, and
as to which the Company does not have the right to exercise
control, are referred to herein collectively as the "RESIDENTIAL
DEVELOPMENT CORPORATIONS."
(viii) Each of the Subsidiaries and the Residential
Development Corporations has been duly organized and is validly
existing as a corporation, limited partnership, or limited
liability company, as the case may be, in good standing under the
laws of its respective state of organization, with full power and
authority to own, lease and operate its properties, to conduct
the business in which it is engaged or proposes to engage as
described in the International Prospectus. Each of the
Subsidiaries and the Residential Development Corporations is duly
qualified as a foreign corporation, limited partnership, or
limited liability company, as the case may be, to transact
business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business,
except where the failure to so qualify would not have a material
adverse effect on the condition, financial or otherwise, or the
earnings, assets, business affairs or business prospects of the
Company, the Operating Partnership, the Subsidiaries and the
Residential Development Corporations considered as one
enterprise. Each of the partnership agreements, limited
liability company agreements, or other, similar instruments to
which the Company or any of its Subsidiaries is a party has
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been duly authorized, executed and delivered by the parties
thereto and constitutes the valid agreement thereof, enforceable
in accordance with its terms. All of the issued and outstanding
shares of capital stock of each of the corporate Subsidiaries and
the Residential Development Corporations have been duly
authorized and validly issued and are fully paid and non-
assessable. The ownership by the Company, the Operating
Partnership or the Subsidiaries of the shares of capital stock or
limited partnership or equity interests, as the case may be, of
each of the Subsidiaries and the Residential Development
Corporations is as described in the Prospectus and all of such
shares or limited partnership or equity interests, or other,
similar instruments owned by the Company, the Operating
Partnership or the Subsidiaries are free and clear of all liens,
charges and encumbrances.
(ix) The authorized, issued and outstanding beneficial
interests in the Company are as set forth in the Prospectus
(except for subsequent issuances, if any, pursuant to clauses (A)
and (B) below); and all of such beneficial interests have been
duly authorized, are validly issued, fully paid and non-
assessable and have been offered and sold in compliance with all
applicable laws (including, without limitation, federal
securities laws). No shares of capital stock of the Company are
reserved for any purpose except in connection with: (A) the
incentive compensation plans of the Company as described in the
Prospectus and (B) the possible issuance of Common Shares upon
the exchange of units of ownership interest in the Operating
Partnership (the "UNITS") pursuant to the Partnership Agreement,
for which sufficient Common Shares have been reserved for
possible future issuance. Except for Units and Common Shares
issuable upon the exercise of options as described in the
Prospectus, there are no outstanding securities convertible into
or exchangeable for any beneficial interests in the Company and
no outstanding options, rights (preemptive or otherwise) or
warrants to purchase or to subscribe for such interests or any
other securities of the Company.
(x) The International Securities have been duly
authorized for issuance and sale to the International
Underwriters pursuant to this Agreement and the applicable
International Terms
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Agreement and, when issued and delivered by the Company pursuant
to such Agreements against payment of the consideration set forth
in the International Terms Agreement, will be validly issued,
fully paid and non-assessable. Upon payment of the purchase
price and delivery of the Securities in accordance with this
Agreement and the applicable International Terms Agreement, each
of the International Underwriters will receive good, valid and
marketable title to the Securities, free and clear of all
security interests, mortgages, pledges, liens, encumbrances and
claims. The International Securities will be offered and sold at
Closing Time, or the Date of Delivery, as the case may be, in
compliance with all applicable laws (including, without
limitation, federal securities laws). The terms of the Common
Shares conform to all statements and descriptions related thereto
contained in the International Prospectus. The form of the
certificate used to evidence any Common Shares, Preferred Shares,
and Warrants included in the International Securities is in due
and proper form and complies with all applicable legal
requirements. The issuance of the Securities is not subject to
any preemptive or other similar rights and, except as summarized
in the International Prospectus and set forth in the Company's
Declaration of Trust or Bylaws, there are no restrictions on the
voting or transfer of the Common Shares pursuant to the Company's
Declaration of Trust or Bylaws or any agreement or other
instrument.
(xi) If applicable, the Warrants have been duly
authorized and, when issued and delivered pursuant to this
Agreement and countersigned by the Warrant Agent as provided in
the Warrant Agreement, will have been duly executed,
countersigned, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the
benefits provided by the Warrant Agreement under which they are
to be issued; the issuance of the Warrant Shares upon exercise of
the Warrants will not be subject to preemptive or other similar
rights; and the Warrants conform in all material respects to all
statements relating thereto contained in the International
Prospectus.
(xii) If applicable, the Common Shares issuable upon
conversion of the Preferred Shares or the Warrant Shares issuable
upon exercise of the Warrants will have been duly and validly
authorized and reserved for issuance upon such conversion
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or exercise by all necessary corporate action and such shares,
when issued upon such conversion or exercise, will be duly
authorized and validly issued and will be fully paid and non-
assessable, and the issuance of such shares upon conversion or
exercise will not be subject to preemptive or other similar
rights; the Common Shares issuable upon conversion of the
Preferred Shares or the Warrant Shares issuable upon exercise of
the Warrants conform in all material respects to all statements
relating thereto contained in the International Prospectus.
(xiii) If applicable, the Warrant Agreement will have been
duly authorized, executed and delivered by the Company prior to
the issuance of the Warrants, and each Warrant Agreement
constitutes a valid and legally binding agreement of the Company
enforceable in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency or other similar
laws relating to or affecting creditors' rights generally and by
general equity principles (regardless of whether enforcement is
considered in a proceeding in equity or at law); and the Warrant
Agreement conforms in all material respects to all statements
relating thereto contained in the International Prospectus.
(xiv) The authorized, issued and outstanding Units are as
set forth in the International Prospectus except to the extent of
changes due to the conversion of Units to Common Shares or the
exercise of existing options to acquire Units. All of the Units
outstanding at Closing Time were duly authorized for issuance by
the Operating Partnership and are validly issued and fully paid.
The Units were offered and sold in compliance with all applicable
laws (including, without limitation, federal and state securities
laws). Except as summarized in the International Prospectus or
set forth in the Partnership Agreement, there are no preemptive
or other rights to subscribe for or to purchase, nor any
restriction upon the voting or transfer of, any Units pursuant to
the Partnership Agreement or any other instrument. The terms of
the Units conform to all statements and descriptions related
thereto contained in the International Prospectus.
(xv) None of the Company, the Operating Partnership, any
Subsidiary or any Residential Development Corporation is in
violation of its declaration of trust, charter, by-laws,
certificate of limited partnership, partnership agreement, or
limited liability company agreement, as the case may be, and none
of the Company, the Operating Partnership, any Subsidiary or any
Residential Development Corporation is in default in the
performance or observance of any obligation,
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agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument to which such entity is a party or by which such
entity may be bound, or to which any of the property or assets of
such entity is subject, except where a default thereunder would
not have a material adverse effect on the condition, financial or
otherwise, or the earnings, assets, business affairs or business
prospects of the Company, the Operating Partnership, the
Subsidiaries and the Residential Development Corporations
considered as one enterprise.
(xvi) The execution and delivery of this Agreement, the
applicable International Terms Agreement or any applicable
Warrant Agreement, the performance of the obligations set forth
herein or therein, and the consummation of the transactions
contemplated hereby or thereby or in the International Prospectus
by the Company, the Operating Partnership, the Subsidiaries and
the Residential Development Corporations, as applicable, will not
conflict with or constitute a breach or violation by such party
of, or default under, (A) any material contract, indenture,
mortgage, loan agreement, note, lease, joint venture or
partnership agreement or other instrument or agreement to which
the Company, the Operating Partnership, any Subsidiary or any
Residential Development Corporation is a party or by which they,
any of them, any of their respective assets or any Property may
be bound or subject; (B) the declaration of trust, charter, by-
laws, certificate of limited partnership, partnership agreement,
or limited liability company agreement, as the case may be, of
the Company, the Operating Partnership, any Subsidiary or any
Residential Development Corporation; or (C) any applicable law,
rule, order, administrative regulation or administrative or court
decree.
(xvii) The Company has full right, power and authority
under its organizational documents to enter into this Agreement,
the applicable International Terms Agreement and any Delayed
Delivery Contracts (as hereinafter defined), and this Agreement
has been, and as of each Representative Date, the applicable
International Terms Agreement and the Delayed Delivery Contracts,
if any, will have been duly authorized, executed and delivered by
the Company
(xviii) The Operating Partnership has full right, power and
authority under its organizational documents to enter into
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this Agreement and this Agreement has been duly authorized,
executed and delivered by the Operating Partnership.
(xix) There is no action, suit or proceeding before or by
any court or governmental agency or body, domestic or foreign,
now pending, or, to the knowledge of the Company or the Operating
Partnership, threatened against or affecting the Company, the
Operating Partnership, any Subsidiary, any Residential
Development Corporation, any Property, or any property underlying
indebtedness held by the Company, the Operating Partnership, any
of the Subsidiaries or any of the Residential Development
Corporations, or any officer or trust manager of the Company that
is required to be disclosed in the Registration Statement (other
than as disclosed therein) or that, if determined adversely to
the Company, the Operating Partnership, any Subsidiary, any
Residential Development Corporation, any Property, including any
property underlying indebtedness held by the Company, the
Operating Partnership, any of the Subsidiaries and any of the
Residential Development Corporations, or any such officer or
trust manager, might (A) result in any material adverse change in
the condition, financial or otherwise, or in the earnings,
assets, business affairs or business prospects of the Company,
the Operating Partnership, the Subsidiaries and the Residential
Development Corporations considered as one enterprise or (B)
materially and adversely affect the consummation of the
transactions contemplated by this Agreement. There is no pending
legal or governmental proceeding to which the Company, the
Operating Partnership, any Subsidiary or any Residential
Development Corporation is a party or of which any of their
respective properties or assets or any Property, including any
property underlying indebtedness held by the Company, the
Operating Partnership, any of the Subsidiaries or any of the
Residential Development Corporations, is the subject, including
ordinary routine litigation incidental to the business, that is,
considered in the aggregate, material to the condition, financial
or otherwise, or the earnings, assets, business affairs or
business prospects of the Company, the Operating Partnership, the
Subsidiaries and the Residential Development Corporations
considered as one enterprise. There are no contracts or
documents that are required to be filed as exhibits to the
Registration Statement by the 1933 Act or by the 1933 Act
Regulations which have not been filed as exhibits to the
Registration Statement or to a document incorporated therein by
reference.
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(xx) The Company qualified as a real estate investment
trust under the Internal Revenue Code of 1986, as amended (the
"CODE"), with respect to its taxable years ended December 31,
1994, December 31, 1995 and December 31, 1996 and is organized in
conformity with the requirements for qualification as a real
estate investment trust, and its manner of operation has enabled
it to meet the requirements for qualification as a real estate
investment trust as of the date of the International Prospectus,
and its proposed manner of operation will enable it to meet the
requirements for qualification as a real estate investment trust
in the future.
(xxi) None of the Company, the Operating Partnership, any
Subsidiary or any Residential Development Corporation is, or at
Closing Time will be, required to be registered under the
Investment Company Act of 1940, as amended (the "1940 ACT").
(xxii) None of the Company, the Operating Partnership, any
Subsidiary or any Residential Development Corporation is required
to own or possess any trademarks, service marks, trade names or
copyrights (collectively, "PROPRIETARY RIGHTS") not now lawfully
owned or possessed in order to conduct the business now operated
by such entity or as proposed to be operated by it as described
in the International Prospectus and no such entity has received
any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any
proprietary rights.
(xxiii) All authorizations, approvals and consents
of any court or governmental authority or agency that are
necessary in connection with the offering, issuance or sale of
the International Securities hereunder have been obtained, except
such as may be required under the 1933 Act or the 1933 Act
Regulations or state securities or real estate syndication laws.
(xxiv) Each of the Company, the Operating Partnership, the
Subsidiaries and the Residential Development Corporations
possesses such certificates, authorizations or permits issued by
the appropriate state, federal or foreign regulatory agencies or
bodies necessary to conduct the business now conducted by it, or
proposed to be conducted by it, as described in the International
Prospectuses, and none of the Company, the Operating Partnership,
any Subsidiary or any Residential Development Corporation has
received any notice of proceedings relating to the revocation or
modification of any such certificate,
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authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would
materially and adversely affect the condition, financial or
otherwise, or the earnings, assets, business affairs or business
prospects of the Company, the Operating Partnership, the
Subsidiaries and the Residential Development Corporations
considered as one enterprise.
(xxv) The documents incorporated or deemed to be
incorporated by reference in the International Prospectus, at the
time it was or hereafter is filed with the Commission, complied
and will comply in all material respects with the requirements of
the 1934 Act and the rules and regulations of the Commission
under the 1934 Act (the "1934 ACT REGULATIONS"), and, when read
together with the other information in the International
Prospectus, at the time the Registration Statement became
effective and as of each International Representation Date or
during the period specified in Section 3(f) hereof, did not and
will not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(xxvi) No labor dispute with the employees of the
Company, the Operating Part nership, any Subsidiary or any
Residential Development Corporation exists or, to the knowledge
of the Company or the Operating Partnership, is imminent.
(xxvii) Except as otherwise described in the
International Prospectus, (A) each of the Company, the Operating
Partnership, the Subsidiaries, and each Residential Development
Corporation, as the case may be, has good and marketable title in
fee simple to all real property owned by such entity and good and
marketable title to the improvements, if any, thereon and all
other assets that are required for the effective operation of
such real property in the manner in which they currently are
operated, except where the failure to own real property or
improvements thereon in fee simple would not have a material
adverse effect on the condition, financial or otherwise, or on
the earnings, assets, business affairs or busi-ness prospects of
or with respect to the Company, the Operating Partnership, the
Subsidiaries and the Residential Development Corporations
considered as one enterprise; (B) any real property and buildings
held under lease by the Company, the Operating Partnership, any
Subsidiary or any Residential Development Corporation are in full
force and effect, and such entity is not in default in respect of
any of the terms or provisions of such leases and such entity has
not received notice of the assertion of any claim by anyone
adverse to the Operating Partnership's rights as lessee under
such leases, or affecting or questioning the Operating
Partnership's right to the continued possession or use of the
real property and buildings held under such leases or of a
default under such leases, in each case with such exceptions as
would not have a material adverse impact on the condition,
financial or otherwise, or on the earnings, assets, business
affairs or business prospects of or with respect to the Company,
the Operating Partnership, the Subsidiaries and the Residential
Development Corporations considered as one enterprise; (C) all
liens, charges, encumbrances, claims, or restrictions on or
affecting any of the Properties, including any property
underlying indebtedness held by the Company, the Operating
Partnership, any of the Subsidiaries or any of the Residential
Development Corporations, and the assets of the Company, the
Operating
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Partnership, any Subsidiary or any Residential Development
Corporation which are required to be disclosed in the
International Prospectus are disclosed therein; (D) none of the
Company, the Operating Partnership, any of the Subsidiaries, any
of the Residential Development Corporations or any tenant of any
of the Properties is in default under any of the leases pursuant
to which the Operating Partnership, as lessor, leases its
Property (and neither the Company nor the Operating Partnership
knows of any event which, but for the passage of time or the
giving of notice, or both, would constitute a default under any
of such leases) other than such defaults that would not have a
material adverse effect on the condition, financial or otherwise,
or on the earnings, assets, business affairs or business
prospects of or with respect to the Operating Partnership, any
Subsidiary or any Residential Development Corporation or any
Property; (E) except as described in the International
Prospectus, no person has an option or right of first refusal to
purchase all or part of any Property or any interest therein,
other than such options or rights of first refusal which would
not have a material adverse effect on the condition, financial or
otherwise, or on the earnings, assets, business affairs or
business prospects of or with respect to the Company, the
Operating Partnership, the Subsidiaries and the Residential
Development Corporations, considered as one enterprise; (F) each
of the Properties complies with all applicable codes, laws and
regulations (including, without limitation, building
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and zoning codes, laws and regulations and laws relating to
access to the Properties), except if and to the extent disclosed
in the International Prospectus and except for such failures to
comply that would not individually or in the aggregate have a
material adverse impact on the condition, financial or otherwise,
or on the earnings, assets, business affairs or business
prospects of such Property or the Operating Partnership; (G)
there are in effect for the Properties, including, to the
knowledge of the Company, any property underlying indebtedness
held by the Company, the Operating Partnership, any of the
Subsidiaries and any of the Residential Development Corporations,
and the other assets of the Company, the Operating Partnership,
the Subsidiaries and the Residential Development Corporations,
insurance policies covering risks and in amounts that are
commercially reasonable for the assets owned by them and that are
consistent with the types and amounts of insurance typically
maintained by present owners of similar types of properties; and
(H) neither the Company nor the Operating Partnership has
knowledge of any pending or threatened condemnation proceedings,
zoning change, or other proceeding or action that will in any
manner affect the size of, use of, improvements on, construction
on or access to the Properties, including any property underlying
indebtedness held by the Company, the Operating Partnership, any
of the Subsidiaries or any Residential Development Corporation,
except such proceedings or actions that would not have a material
adverse effect on the condition, financial or otherwise, or on
the earnings, assets, business affairs or business prospects of
the Operating Partnership or with respect to such Property,
including any property underlying indebtedness held by the
Company, the Operating Partnership, any of the Subsidiaries or
any Residential Development Corporation.
(xxviii) Except as disclosed in the International
Prospectus, (A) each Property, including, without limitation, the
Environment (as defined below) associated with such Property, is
free of any Hazardous Substance (as defined below), except for
Hazardous Substances that would not have a material adverse
effect on the condition, financial or otherwise, or on the
earnings, assets, business affairs or business prospects of or
with respect to the Company, the Operating Partnership, the
Subsidiaries and the Residential Development Corporations
considered as one enterprise; (B) none of the Company, the
Operating Partnership, any Subsidiary or any Residential
Development Corporation has caused or suffered to occur any
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Release (as defined below) of any Hazardous Substance into the
Environment on, in, under or from any Property, and no condition
exists on, in, under or, to the knowledge of the Company and the
Operating Partnership, adjacent to any Property that is
reasonably likely to result in the incurrence of material
liabilities or any material violations of any Environmental Law
(as defined below), give rise to the imposition of any Lien (as
defined below) under any Environmental Law, or cause or
constitute a health, safety or environmental hazard to any
property, person or entity; (C) none of the Company, the
Operating Partnership, any Subsidiary or any Residential
Development Corporation intends to use the properties or assets
described in the International Prospectus or any other real
property 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 a Hazardous Substance, except for materials utilized
in the ordinary course of business of the properties, provided
such use would not, in the ordinary course of business, give rise
to liability under any Environmental Law; (D) none of the
Company, the Operating Partnership, any Subsidiary or any
Residential Development Corporation has received any notice of a
claim under or pursuant to any Environmental Law or under common
law pertaining to Hazardous Substances on or originating from any
Property; (E) none of the Company, the Operating Partnership, any
Subsidiary or any Residential Development Corporation has
received any notice from any Governmental Authority (as defined
below) claiming any violation of any Environmental Law; (F) no
Property is included or, to the knowledge of the Company and the
Operating Partnership, proposed for inclusion on the National
Priorities List issued pursuant to CERCLA (as defined below) by
the United States Environmental Protection Agency (the "EPA") or
on the Comprehensive Environmental Response, Compensation, and
Liability Information System database maintained by the EPA, and
has not otherwise been identified by the EPA as a potential
CERCLA removal, remedial or response site or included or, to the
knowledge of the Company and the Operating Partnership, proposed
for inclusion on, any similar list of potentially contaminated
sites pursuant to any other Environmental Law and (G) there are
no underground storage tanks located on or in any Property except
where the presence
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thereof would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, assets or
business affairs or business prospects of the Company, the
Operating Partnership, the Subsidiaries and the Residential
Development Corporations considered as one enterprise.
As used herein, "HAZARDOUS SUBSTANCE" shall include, without
limitation, any hazardous substance, hazardous waste, toxic substance,
pollutant, solid waste or similarly designated materials, including,
without limitation, oil, petroleum or any petroleum-derived substance or
waste, asbestos or asbestos-containing materials, PCBs, pesticides,
explosives, radioactive materials, dioxins, urea formaldehyde insulation
or any constituent of any such substance, pollutant or waste, including
any such substance, pollutant or waste identified or regulated under any
Environmental Law (including, without limitation, materials listed in
the United States Department of Transportation Optional Hazardous
Material Table, 49 C.F.R. Section 172.101, as the same may now or
hereafter be amended, or in the EPA's List of Hazardous Substances and
Reportable Quantities, 40 C.F.R. Part 302, as the same may now or
hereafter be amended); "ENVIRONMENT" shall mean any surface water,
drinking water, ground water, land surface, subsurface strata, river
sediment, buildings, structures, and ambient, workplace and indoor air;
"ENVIRONMENTAL LAW" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. Section
9601 et seq.) ("CERCLA"), the Resource Conservation and Recovery Act of
1976, as amended (42 U.S.C. Section 6901 et seq.), the Clean Air Act,
as amended (42 U.S.C. Section 7401 et seq.), the Clean Water Act, as
amended (33 U.S.C. Section 1251 et seq.), the Toxic Substances Control
Act, as amended (15 U.S.C. Section 2601 et seq.), the Occupational
Safety and Health Act of 1970, as amended (29 U.S.C. Section 651 et
seq.), the Hazardous Materials Transportation Act, as amended (49 U.S.C.
Section 1801 et seq.), and all other federal, state and local laws,
ordinances, regulations, rules, orders, decisions and permits relating
to the protection of the environment or of human health from
environmental effects; "GOVERNMENTAL AUTHORITY" shall mean any federal,
state or local governmental office, agency or authority having the duty
or authority to promulgate, implement or enforce any Environmental Law;
"LIEN" shall mean, with respect to any Property, any mortgage, deed of
trust, pledge, security interest, lien, encumbrance, penalty, fine,
charge, assessment, judgment or other liability in, on or affecting such
Property; and "RELEASE" shall mean any spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching,
dumping, emanating or disposing of any Hazardous Substance into the
Environment, including, without limitation, the abandonment or discard
of barrels, containers, tanks (including, without limitation,
underground storage tanks) or other receptacles containing or previously
containing any
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Hazardous Substance or any release, emission, discharge or similar term,
as those terms are defined or used in any Environmental Law.
(xxix) Each of the Company, the Operating Partnership, the
Subsidiaries and the Residential Development Corporations has
filed all federal, state, local and foreign income tax returns
which have been required to be filed (except in any case in which
the failure to so file would not have a material adverse effect
on the condition, financial or otherwise, or the earnings,
assets, business affairs or business prospects of such entities
considered as one enterprise) and has paid all taxes required to
be paid and any other assessment, fine or penalty levied against
it, to the extent that any of the foregoing is due and payable,
except, in all cases, for any such tax, assessment, fine or
penalty that is being contested in good faith.
(xxx) None of the Company, the Subsidiaries, the
Residential Development Corporations or the Operating
Partnership, nor any of their trust managers, directors, officers
or controlling persons, has taken or will take, directly or
indirectly, any action resulting in a violation of Regulation M
under the 1934 Act, or designed to cause or result under the 1934
Act or otherwise in, or which has constituted or which reasonably
might be expected to constitute, the unlawful stabilization or
manipulation of the price of any security of the Company or
facilitation of the sale or resale of the International
Securities.
(b) Any certificate signed by any officer of the Company or the
Operating Partnership and delivered to you or to counsel for the International
Underwriters shall be deemed a representation and warranty by such entity to
each International Underwriter as to the matters covered thereby.
SECTION 2. PURCHASE AND SALE.
(a) The several commitments of the International Underwriters to
purchase the International Securities pursuant to the applicable International
Terms Agreement shall be deemed to have been made on the basis of the
representations and warranties herein contained and shall be subject to the
terms and conditions set forth herein or in the applicable International Terms
Agreement.
(b) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company may grant, if so provided in the applicable International Terms
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Agreement relating to the Initial International Securities, an option to the
International Underwriters named in such International Terms Agreement,
severally and not jointly, to purchase up to the number of International Option
Securities set forth therein at the same price per Option Security as is
applicable to the Initial International Securities. Such option, if granted,
will expire 30 days or such lesser number of days as may be specified in the
applicable International Terms Agreement after the International Representation
Date relating to the Initial International Securities, and may be exercised in
whole or in part from time to time only for the purpose of covering over-
allotments which may be made in connection with the offering and distribution
of the Initial International Securities upon notice by you to the Company
setting forth the number of International Option Securities as to which the
several International Underwriters are then exercising the option and the time
and date of payment and delivery for such International Option Securities. Any
such time and date of delivery (a "DATE OF DELIVERY") shall be determined by
you, but shall not be later than seven full business days and not be earlier
than two full business days after the exercise of said option, unless otherwise
agreed upon by you and the Company. If the option is exercised as to all or
any portion of the International Option Securities, each of the International
Underwriters, acting severally and not jointly, will purchase that proportion
of the total number of International Option Securities then being purchased
which the number of Initial International Securities each such Underwriter has
agreed to purchase as set forth in the applicable International Terms Agreement
bears to the total number of Initial International Securities, subject to such
adjustments as you in your discretion shall make to eliminate any sales or
purchases of fractional Initial International Securities.
(c) Payment of the purchase price for, and delivery of, the
International Securities to be purchased by the International Underwriters
shall be made at the offices of Xxxxx & Xxxxxxx L.L.P., Columbia Square, 000
Xxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000-0000, or at such other place
as shall be agreed upon by you and the Company, at 9:00 A.M., New York City
time, on the third business day (unless postponed in accordance with the
provisions of Section 10 hereof) following the date of the applicable
International Terms Agreement or, if pricing takes place after 4:30 P.M. New
York City time on the date of the applicable International Terms Agreement, on
the fourth business day (unless postponed in accordance with the provisions of
Section 10 hereof) following the date of the applicable International Terms
Agreement, or at such other time as shall be agreed upon by you and the Company
(each such time and date being referred to as a "CLOSING TIME"). In addition,
if any or all of the International Option Securities are purchased by the
International Underwriters, payment of the purchase price for, and delivery of
certificates representing, such International Option Securities, shall be made
at the above-mentioned offices of Xxxxx & Xxxxxxx L.L.P., or at such other
place as shall be agreed upon by you and the Company, on each Date of Delivery
as specified in the notice from you to the Company. Unless otherwise specified
in the applicable International Terms
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Agreement, payment shall be made to the Company by wire transfer or by
certified or official bank check or checks in federal or similar same-day funds
payable to the order of the Company against delivery to you for the respective
accounts of the International Underwriters of the International Securities to
be purchased by them. The International Securities shall be in such authorized
denominations and registered in such names as you may request in writing at
least two business days prior to the applicable Closing Time or Date of
Delivery, as the case may be. The International Securities, which may be in
temporary form, will be made available for examination and packaging by you on
or before the first business day prior to the applicable Closing Time or Date
of Delivery, as the case may be.
If authorized by the applicable International Terms Agreement, the
International Underwriters named therein may solicit offers to purchase
International Securities from the Company pursuant to delayed delivery
contracts ("DELAYED DELIVERY CONTRACTS") substantially in the form of Annex B
hereto with such changes therein as the Company may approve. As compensation
for arranging Delayed Delivery Contracts, the Company will pay to you at
Closing Time, for the respective accounts of the International Underwriters, a
fee specified in the applicable International Terms Agreement for each of the
International Securities for which Delayed Delivery Contracts are made at the
applicable Closing Time as is specified in the applicable International Terms
Agreement. Any Delayed Delivery Contracts are to be with institutional
investors of the types described in the Prospectuses. At the applicable
Closing Time, the Company will enter into Delayed Delivery Contracts (for not
less than the minimum number of International Securities per Delayed Delivery
Contract specified in the applicable International Terms Agreement) with all
purchasers proposed by the International Underwriters and previously approved
by the Company as provided below, but not for an aggregate number of
International Securities in excess of that specified in the applicable
International Terms Agreement. The International Underwriters will not have
any responsibility for the validity or performance of Delayed Delivery
Contracts.
You shall submit to the Company, at least three business days prior
to the applicable Closing Time, the names of any institutional investors with
which it is proposed that the Company will enter into Delayed Delivery
Contracts and the number of International Securities to be purchased by each of
them, and the Company will advise you, at least two business days prior to the
applicable Closing Time, of the names of the institutional investors with which
the making of Delayed Delivery Contracts is approved by the Company and the
number of International Securities to be covered by each such Delayed Delivery
Contract.
The number of International Securities agreed to be purchased by the
several International Underwriters pursuant to the applicable International
Terms Agreement shall be reduced by the number of International Securities
covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a
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written notice delivered by you to the Company; provided, however, that the
total number of International Securities to be purchased by all International
Underwriters shall be the total number of International Securities covered by
the applicable International Terms Agreement, less the number of International
Securities covered by Delayed Delivery Contracts.
SECTION 3. COVENANTS OF THE COMPANY AND THE OPERATING PARTNERSHIP.
Each of the Company and the Operating Partnership covenants with each
International Underwriter as follows:
(a) Immediately following the execution of the applicable international
Terms Agreement, the Company will prepare a Prospectus Supplement setting forth
the number of International Securities covered thereby and their terms not
otherwise specified in the Prospectus pursuant to which the International
Securities are being issued, the names of the International Underwriters
participating in the offering and the number of International Securities which
each severally has agreed to purchase, the names of the International
Underwriters acting in connection with the offering, the price at which the
International Securities are to be purchased by the International Underwriters
from the Company, the initial public offering price, if any, the selling
concession and reallowance, if any, any delayed delivery arrangements, and such
other information as you and the Company deem appropriate in connection with
the offering of the International Securities; and the Company will promptly
transmit copies of the Prospectus Supplement to the Commission for filing
pursuant to Rule 424(b) of the 1933 Act Regulations within the time period
required by such Rule and will furnish to the International Underwriters named
therein as many copies of the International Prospectus and such Prospectus
Supplement as you shall reasonably request. If the Company elects to rely on
Rule 434 under the 1933 Act Regulations, the Company will prepare an
abbreviated term sheet that complies with the requirements of Rule 434 under
the 1933 Act Regulations and will provide the International Underwriters with
copies of the form of Rule 434 Prospectus, in such number as the International
Underwriters may reasonably request, and file or transmit for filing with the
Commission the form of International Prospectus complying with Rule 434(c)(2)
of the 1933 Act Regulations in accordance with Rule 424(b) of the 1933 Act
Regulations by the close of business in New York on the business day
immediately succeeding the date of the applicable International Terms
Agreement.
(b) The Company will notify you immediately, and confirm such notice
in writing, of (i) the effectiveness of any amendment to the Registration
Statement relating to or affecting the offering of the International
Securities, (ii) the transmittal to the Commission for filing of any Prospectus
Supplement or
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other supplement or amendment to the International Prospectus or any document
to be filed pursuant to the 1934 Act relating to or affecting the offering of
the International Securities, (iii) the receipt of any comments from the
Commission relating to or affecting the offering of the International
Securities, (iv) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the International
Prospectus or for additional information relating to or affecting the offering
of the International Securities, and (v) the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement relating
to or affecting the offering of the International Securities or the initiation
of any proceedings for that purpose; and the Company will make every reasonable
effort to prevent the issuance of any such stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(c) At any time when the International Prospectus is required to be
delivered under the 1933 Act or the 1934 Act in connection with sales of the
International Securities, the Company will give you notice of its intention to
file or prepare any amendment to the Registration Statement or any amendment or
supplement to the International Prospectus (including any revised prospectus
which the Company proposes for use by you in connection with the offering of
International Securities which differs from the International Prospectus on
file at the Commission at the time the Registration Statement became effective,
whether or not such revised prospectus is required to be filed pursuant to Rule
424(b) of the 1933 Act Regulations), whether pursuant to the 1933 Act, 1934 Act
or otherwise, and will furnish you with copies of any such amendment or
supplement a reasonable amount of time prior to such proposed filing or
preparation, as the case may be, and will not file or prepare any such
amendment or supplement or other documents in a form to which you or counsel
for the International Underwriters shall reasonably object.
(d) The Company will deliver to each International Underwriter as
many signed and conformed copies of the Registration Statement as originally
filed and of each amendment thereto, of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein) as the
International Underwriters may reasonably request.
(e) The Company will furnish to each International Underwriter, from
time to time during the period when the International Prospectus is required to
be delivered under the 1933 Act or the Exchange Act, such number of copies of
the International Prospectus (as amended or supplemented) as such International
Underwriter may reasonably request for the purposes contemplated by the 1933
Act or the 1934 Act or the respective applicable rules and regulations of the
Commission thereunder.
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(f) If any event shall occur as a result of which it is necessary, in
the opinion of counsel for the International Underwriters or counsel for the
Company, to amend or supplement the International Prospectus in order to make
the International Prospectus not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances existing at the time it is delivered
to a purchaser, not misleading, or if it shall be necessary, in the opinion of
either such counsel, at any such time to amend or supplement the Registration
Statement or the International Prospectus in order to comply with the 1933 Act
or the 1934 Act, the Company will forthwith prepare an amendment of or
supplement to the Registration Statement or the International Prospectus (in
form and substance satisfactory to counsel for the International Underwriters),
whether by filing documents pursuant to the 1933 Act, the 1934 Act or
otherwise, which will amend or supplement the International Prospectus so that
it will not contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances existing at the time it is delivered to a purchaser, not
misleading, or to make the Registration Statement and International Prospectus
comply with such requirements, and the Company will furnish to the
International Underwriters a reasonable number of copies of such amendment or
supplement.
(g) The Company will endeavor, in cooperation with the International
Underwriters and their counsel, to qualify the International Securities, the
Warrant Shares, if any, and any securities issuable upon conversion of the
Preferred Shares for offering and sale under the applicable securities laws and
real estate syndication laws of such jurisdictions as you may designate. In
each jurisdiction in which the International Securities, the Warrant Shares, if
any, and the securities issuable upon conversion of the Preferred Shares have
been so qualified, the Company will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification in
effect for a period of not less than one year from the effective date of the
Registration Statement.
(h) With respect to each sale of International Securities, the
Company will make generally available to its security holders as soon as
practicable, but not later than 90 days after the close of the period covered
thereby, an earnings statement (in form complying with the provisions of Rule
158 of the 1933 Act Regulations) covering a 12-month period beginning not later
than the first day of the Company's fiscal quarter next following the
"effective date of the registration statement" (as defined in such Rule 158).
(i) The Company, during the period when the International Prospectus
is required to be delivered under the 1933 Act or the 1934 Act in connection
with sales of the International Securities, will file all documents required to
be filed with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act
within the time periods prescribed by the 1934 Act and the 1934 Act
Regulations.
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(j) If applicable, the Company will use the net proceeds received by
it from the sale of the International Securities in the manner specified in the
International Prospectus under the caption "Use of Proceeds."
(k) If requested by you, the Company will use its best efforts to
effect the listing of the International Securities on the New York Stock
Exchange or such other national securities exchange on which securities of the
Company are then listed.
(l) During the period from the date of the applicable International
Terms Agreement until 90 days after Closing Time, the Company and the Operating
Partnership will not, without your prior written consent, directly or
indirectly, sell, offer to sell, grant any option for the sale of, or otherwise
dispose of, any Common Shares or Units or any other security convertible into
or exchangeable into or exercisable for the Common Shares, otherwise than in
accordance with this Agreement or as contemplated in the International
Prospectus except for (i) options granted under the incentive plans of the
Company, (ii) Common Shares issued in exchange for Units and (iii) Common
Shares or Units issued in connection with the acquisition of real property or
interests therein.
(m) The Company will use its best efforts to meet the requirements to
continue to qualify as a "real estate investment trust" under the Code.
(n) If requested by you, the Company and the Operating Partnership
will cause, or have caused, the officers and trust managers of the Company to
enter into lock-up agreements in form and substance reasonably satisfactory to
you, and each of the Company and the Operating Partnership acknowledges that
the International Underwriters are or will be intended third party
beneficiaries of such agreements.
(o) If any Preferred Shares or Warrants included in the International
Securities are convertible into or exercisable for, as applicable, Common
Shares, the Company will reserve and keep available at all times, free of
preemptive or other similar rights, a sufficient number of Common Shares for
the purpose of enabling the Company to satisfy any obligations to issue such
shares upon conversion of such Preferred Shares, or upon exercise of such
Warrants.
(p) If any Preferred Shares or Warrants included in the International
Securities are convertible into or exercisable for, as applicable, Common
Shares, the Company will use its best efforts to list the Common Shares
issuable on conversion of such Preferred Shares or upon exercise of such
Warrants on the New York Stock Exchange or such other national securities
exchange on which the Common Shares are then listed.
(q) Except for the authorization of actions permitted to be taken by
the Underwriters as contemplated herein or in the Prospectuses, neither the
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Company nor the Operating Partnership will (i) take, directly or indirectly,
any action designed to cause or to result in, or that might reasonably be
expected to constitute, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the International
Securities, (ii) sell, bid for or purchase the International Securities or pay
any person any compensation for soliciting purchases of the International
Securities or (iii) pay or agree to pay to any person any compensation for
soliciting another to purchase any other securities of the Company.
(r) During the period from Closing Time until five years after
Closing Time, the Company will deliver to you, (i) promptly upon their becoming
available, copies of all current, regular and periodic reports of the Company
mailed to its stockholders or filed with any securities exchange or with the
Commission or any governmental authority succeeding to any of the Commission's
functions, and (ii) such other information concerning the Company, the
Operating Partnership, any Subsidiary or any Residential Development
Corporation as you may reasonably request.
(s) Prior to Closing Time and if not described in the International
Prospectus, the Company and the Operating Partnership will notify you in
writing immediately if any event occurs that renders any of the representations
and warranties of the Company and the Operating Partnership contained herein
inaccurate or incomplete in any respect.
(t) If at any time during the 25-day period after any amendment to
the Registration Statement becomes effective or during the period prior to the
final Date of Delivery, any rumor, publication or event relating to or
affecting the Company shall occur as a result of which in your opinion the
market price of the International Securities has been or is likely to be
materially affected (regardless of whether such rumor, publication or event
necessitates supplements to or amendments of the Prospectuses), the Company
will, after written notice from you advising the Company to that effect,
promptly prepare, consult with you concerning the substance of, and disseminate
a press release or other public statement, reasonably satisfactory to you,
responding to or commenting on such rumor, publication or event.
(u) From the date hereof until notice of termination pursuant to
Section 9(a) hereof is received by you, the Company shall furnish to you and
your counsel, within two days after filing, copies of any document filed with
the Commission pursuant to Section 13, 14 or 15 of the 1934 Act.
SECTION 4. PAYMENT OF FEES AND EXPENSES.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement and the applicable International Terms
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Agreement, including (i) the printing and filing of the Registration Statement
as originally filed and of each amendment thereto, (ii) the printing of this
Agreement and the applicable International Terms Agreement and other documents
related hereto, (iii) the preparation, issuance and delivery of the
certificates for the International Securities to the International
Underwriters, (iv) the fees and other charges of the Company's counsel and
accountants, (v) the qualification of the International Securities and the
Warrant Shares and securities issuable upon conversion of the Preferred Shares,
if any, under securities laws and real estate syndication laws in accordance
with the provisions of Section 3(g) hereof, including filing fees and the fees
and other charges of counsel for the International Underwriters in connection
therewith and in connection with the preparation of a blue sky memorandum (the
"BLUE SKY MEMORANDUM"), (vi) the printing and delivery to the International
Underwriters of copies of the Registration Statement as originally filed and of
each amendment thereto, of the preliminary prospectus, and of the International
Prospectus and any amendments or supplements thereto, (vii) the printing (and
reproduction) and delivery to the International Underwriters of copies of the
Blue Sky Memorandum, (viii) the printing and delivery to the International
Underwriters of copies of the Warrant Agreement, if any, (ix) any fees charged
by nationally recognized statistical rating organizations for the rating of the
International Securities, (x) the fees and expenses, if any, incurred with
respect to the listing of the International Securities, the Warrant Shares or
the securities issuable on conversion of the Preferred Shares, if any, on any
national securities exchange, and (xi) the fee of the National Association of
Securities Dealers, Inc. (the "NASD"), including the fees and other charges of
counsel for the International Underwriters in connection with the NASD's review
of the proposed public offering of the International Securities.
If the applicable International Terms Agreement is canceled or
terminated by you in accordance with the provisions of Section 5 or Section 9
hereof, the Company also shall reimburse the International Underwriters for all
of their out-of-pocket expenses, including the reasonable fees and other
charges of counsel for the International Underwriters.
SECTION 5. CONDITIONS OF INTERNATIONAL
UNDERWRITERS' OBLIGATIONS.
The obligations of the International Underwriters hereunder and under
the applicable International Terms Agreement are subject to the accuracy, as of
the date hereof and at Closing Time, of the representations and warranties of
the Company and the Operating Partnership herein contained, to the performance
by the Company and the Operating Partnership of their respective obligations
hereunder, and to the following further conditions:
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(a) At the applicable Closing Time (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission,
(ii) the rating assigned by any nationally recognized statistical rating
organization to any Preferred Shares of the Company and any indebtedness of the
Company or the Operating Partnership as of the date of the applicable
International Terms Agreement shall not have been lowered since such date nor
shall any such rating organization have publicly announced that it has placed
any Preferred Shares of the Company and any indebtedness of the Company or the
Operating Partnership on what is commonly termed a "watch list" for possible
downgrading, and (iii) there shall not have come to your attention any facts
that would cause you to believe that the International Prospectus, together
with the applicable Prospectus Supplement, at the time it was required to be
delivered to purchasers of the International Securities, included an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the circumstances existing at
such time, not misleading.
(b) At Closing Time, you shall have received:
(i) The favorable opinions, dated as of Closing Time, of Shaw,
Pittman, Xxxxx & Xxxxxxxxxx, counsel for each of the Company, the
Operating Partnership, the Subsidiaries and the Residential Development
Corporations, and Xxxxx Xxxxxxx Rain Xxxxxxx (A Professional
Corporation), special Texas tax counsel for the Subsidiaries that are
Texas entities (collectively with the Residential Development
Corporations, the "TEXAS ENTITIES"), each in form and substance
satisfactory to counsel for the International Underwriters, to the
effect that:
(A) The Company has been duly formed as a real estate
investment trust under the laws of the State of Texas. The Company
has power and authority to own, lease and operate its properties, to
conduct the business in which it is engaged or proposes to engage as
described in the International Prospectus, and to enter into and
perform its obligations under this Agreement, the Partnership
Agreement, the applicable International Terms Agreement and the
Warrant Agreement, if any (collectively, the "LISTED AGREEMENTS").
According to the County Clerk of Tarrant County, Texas, the Restated
Declaration of Trust of the Company is recorded in Volume 12645,
beginning at Page 1811, in the records of the County Clerk. The
Restated Declaration of Trust is in effect, and no dissolution,
revocation or forfeiture proceedings regarding the Company have been
commenced. The Company is duly qualified as a foreign organization
to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
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where the failure to so qualify would not have a material adverse effect
on the condition, financial or otherwise, or the earnings, assets,
business affairs or business prospects of the Company, the Operating
Partnership, the Subsidiaries and the Residential Development
Corporations considered as one enterprise.
(B) The Operating Partnership has been duly formed and is
validly existing as a limited partnership in good standing under the
Delaware Act. The Operating Partnership has full partnership power and
authority to own, lease and operate its properties, to conduct the
business in which it is engaged or proposes to engage as described in
the International Prospectus and to enter into and perform its
obligations under this Agreement and the Listed Agreements to which it
is a party. The Operating Partnership is duly qualified or registered
as a foreign partnership and is in good standing in Texas, Colorado,
Arizona, New Mexico, Louisiana, Nebraska and each other jurisdiction in
which such qualification or registration is required, whether by reason
of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify or register would not have a
material adverse effect on the condition, financial or otherwise, or the
earnings, assets, business affairs or business prospects of the Company,
the Operating Partnership, the Subsidiaries and the Residential
Development Corporations considered as one enterprise. CGP, Inc., a
wholly owned subsidiary of the Company, is the sole general partner of
the Operating Partnership.
(C) Each of Crescent Real Estate Funding I, L.P., Crescent Real
Estate Funding II, L.P., Crescent Real Estate Funding III, L.P.,
Crescent Real Estate Funding IV, L.P., Crescent Real Estate Funding V,
L.P., Crescent Real Estate Funding VI, L.P. and any other Subsidiary
that would be considered a "Significant Subsidiary" as defined in
Article 1, Rule 1-02 of Regulation S-X promulgated pursuant to the 1933
Act (collectively, the "Significant Subsidiaries") has been organized
and is validly existing as a corporation, limited partnership or limited
liability company, as the case may be, in good standing under the laws
of its respective state of organization, with full corporate,
partnership or limited liability company (as the case may be) power and
authority to own, lease and operate its properties, to conduct the
business in which it is engaged or proposes to engage as described in
the International Prospectus, and to enter into and perform its
obligations under any Listed Agreements to which it is a party. Each of
the Significant Subsidiaries and the Residential Development
Corporations is duly qualified as a foreign corporation, limited
partnership or limited liability company, as the case may be, to
transact business and is in good standing in each jurisdiction in which
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such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure
to so qualify would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, assets, business affairs or
business prospects of the Company, the Operating Partnership, the
Significant Subsidiaries and the Residential Development Corporations
considered as one enterprise. All of the issued and outstanding shares
of capital stock of each of the corporate Significant Subsidiaries have
been duly authorized and validly issued and are fully paid and non-
assessable. The ownership by the Company, the Operating Partnership and
the Significant Subsidiaries of the shares of capital stock or limited
partnership or equity interests, as the case may be, of each of the
Significant Subsidiaries is as described in the International Prospectus
and such ownership is free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(D) The authorized, issued and outstanding shares of beneficial
interest of the Company are as set forth in the International
Prospectus. All of such shares of beneficial interest are validly
issued, fully paid and non-assessable and have been offered and sold in
compliance with all applicable laws (including, without limitation,
federal securities laws). No shares of beneficial interest of the
Company are reserved for any purpose except in connection with (i) the
option plans of the Company as described in the International Prospectus
and (ii) the possible issuance of Common Shares upon the exchange of
Units pursuant to the Partnership Agreement. Except for Units, Common
Shares issuable upon the exercise of options and Units issuable upon the
exercise of options, there are no outstanding securities convertible
into or exchangeable for any shares of beneficial interest of the
Company and no outstanding options, rights (preemptive or otherwise) or
warrants to purchase or to subscribe for shares of beneficial interest
or any other securities of the Company.
(E) The International Securities have been duly authorized for
issuance and sale to the International Underwriters pursuant to this
Agreement and when issued and delivered by the Company pursuant thereto
and pursuant to the applicable International Terms Agreement against
payment of the consideration set forth therein and in any applicable
Delayed Delivery Contract, will be validly issued, fully paid and non-
assessable. Upon payment of the purchase price and delivery of the
International Securities in accordance herewith each of the
International Underwriters is receiving good, valid and marketable title
to the International Securities, free and clear of all security
interests, mortgages, pledges, liens, encumbrances and claims. The
International Securities will be offered and sold at Closing Time,
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or the Date of Delivery, as the case may be, in compliance with all
applicable laws (including, without limitation, the federal and
international securities laws). The terms of the International
Securities and the Common Shares, Preferred Shares and Warrants conform
to all statements and descriptions related thereto contained in the
International Prospectus. The form of stock certificate evidencing
Common Shares, Preferred Shares and Warrants, as applicable, is in due
and proper form and complies with all applicable legal requirements.
The issuance of the International Securities is not subject to any
preemptive or other similar rights and, except as set forth in the
International Prospectus, there are no restrictions on the voting or
transfer of Common Shares, Preferred Shares or Warrants, as applicable,
pursuant to the Company's Declaration of Trust or Bylaws or any
agreement or other instrument known to such counsel.
(F) If applicable, the Warrants have been duly authorized and,
when issued and delivered pursuant to this Agreement and the U.S.
Purchase Agreement and countersigned by the Warrant Agent as provided in
the Warrant Agreement, will have been duly executed, countersigned,
issued and delivered and will constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the
Warrant Agreement under which they are to be issued.
(G) If applicable, the securities issuable upon conversion of
the Preferred Shares and the securities issuable upon exercise of the
Warrants have been duly and validly authorized and reserved for issuance
upon such conversion or exercise by all necessary action on the part of
the Company and such shares, when issued upon such conversion or
exercise in accordance with the Declaration of Trust, the Warrant
Agreement, or the Delayed Delivery Contract, as the case may be, will be
duly authorized, validly issued, fully paid and non-assessable, and the
issuance of such securities upon such conversion or exercise will not be
subject to preemptive or other similar rights arising by operation of
law or otherwise.
(H) Any applicable Warrant Agreement has been duly authorized,
executed and delivered by the Company and, assuming due authorization,
execution and delivery by the Warrant Agent, constitutes a valid and
legally binding agreement of the Company enforceable in accordance with
its terms; and the Warrant Agreement conforms in all material respects
to all statements relating thereto contained in the International
Prospectus.
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(I) If applicable, the relative rights, preferences, interests
and powers of the Preferred Shares, as the case may be, are as set forth
in a statement of designation filed for record with the County Clerk of
Tarrant County, Texas, and all such provisions are valid under Texas
law.
(J) At Closing Time, the number of authorized, issued and
outstanding Units will be as set forth in the International Prospectus,
except to the extent of changes due to either the conversion of Units to
Common Shares or the exercise of existing options to acquire Units. All
of the Units outstanding at Closing Time were duly authorized for
issuance by the Operating Partnership and are validly issued and fully
paid. To our knowledge, the Units were offered and sold in compliance
with all applicable laws (including, without limitation, federal
securities laws). Except as summarized in the International Prospectus
or as set forth in the Partnership Agreement, there are no preemptive or
other rights to subscribe for or to purchase, or any restriction upon
the voting or transfer of, any Units pursuant to the Partnership
Agreement or any other instrument known to such counsel. The terms of
the Units conform to all statements and descriptions related thereto
contained in the International Prospectus.
(K) Each of this Agreement, the applicable International Terms
Agreement, and any Delayed Delivery Contract has been duly authorized,
executed and delivered by each of the Company and the Operating
Partnership, as applicable.
(L) None of the Company, the Operating Partnership or any
Significant Subsidiary is in violation of its declaration of trust,
charter, by-laws, certificate of limited partnership, partnership
agreement, limited liability company agreement or similar instrument, as
the case may be, and, to the knowledge of counsel, none of the Company,
the Operating Partnership or any Significant Subsidiary is in default in
the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument filed as an exhibit to the
Registration Statement or any document incorporated therein by reference
or as otherwise identified by the Company as material in an officer's
certificate to which such entity is a party or by which such entity is
bound, or to which any of the property or assets of such entity is
subject, except where a default thereunder would not have a material
adverse effect on the condition, financial or otherwise, or the
earnings, assets, business affairs or business prospects of the Company,
the Operating Partnership, the Subsidiaries and the Residential
Development Corporations considered as one enterprise.
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(M) Each of the Listed Agreements was duly and validly
authorized, executed and delivered by the Company and the Operating
Partnership, as applicable, and, assuming due authorization, execution
and delivery by any other party thereto, is a valid and binding
agreement, enforceable in accordance with its terms, except as such
enforceability may be (1) limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
the rights and remedies of creditors generally and (2) subject to
general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
(N) The execution and delivery of the Listed Agreements, the
performance of the obligations set forth in each of the Listed
Agreements, and the consummation of the transactions contemplated
thereby or in the International Prospectus by the Company, the Operating
Partnership and the Significant Subsidiaries as applicable, will not
conflict with or constitute a breach or violation of, or default under:
(1) to the knowledge of counsel, any material contract, indenture,
mortgage, loan agreement, note, lease, joint venture or partnership
agreement or other instrument or agreement filed as an exhibit to the
Registration Statement or any document incorporated therein by reference
or as otherwise identified by the Company as material in an officer's
certificate to which the Company, the Operating Partnership or any
Significant Subsidiary is a party or by which they or any of them or any
of their respective properties or other assets or any Property may be
bound or subject; (2) the declaration of trust, charter, by-laws,
certificate of limited partnership, partnership agreement, or limited
liability company agreement, or similar instrument, as the case may be,
of the Company, the Operating Partnership or any Significant Subsidiary;
or (3) any federal or Texas law. The descriptions of the Listed
Agreements, if any, contained in the International Prospectus are
correct and complete in all material respects.
(O) To the knowledge of counsel, there is no action, suit or
proceeding before or by any court or governmental agency or body,
domestic or foreign, now pending or threatened against or affecting the
Company,
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the Operating Partnership or any Significant Subsidiary, any Property,
any property underlying indebtedness held by the Company, the Operating
Partnership or any of the Significant Subsidiaries, or any officer or
trust manager of the Company that is required to be disclosed in the
Registration Statement (other than as disclosed therein) or that, if
determined adversely to the Company, the Operating Partnership, any
Significant Subsidiary, any Property, including any property underlying
indebtedness held by the Company, the Operating Partnership, any of the
Significant Subsidiaries, or any such officer or trust manager, would
reasonably be expected to (1) result in any material adverse change in
the condition, financial or otherwise, or in the earnings, assets,
business affairs or business prospects of the Company, the Operating
Partnership, the Subsidiaries and the Residential Development
Corporations, considered as one enterprise, or (2) materially and
adversely affect the consummation of the transactions contemplated by
this Agreement. To the knowledge of counsel, there is no pending legal
or governmental proceeding to which the Company, the Operating
Partnership or any Significant Subsidiary is a party or of which any of
their respective properties or assets or any Property, including any
property underlying indebtedness held by the Company, the Operating
Partnership or any of the Significant Subsidiaries is the subject,
including ordinary routine litigation incidental to the business, that
is, considered in the aggregate, material to the condition, financial or
otherwise, or the earnings, assets, business affairs or business
prospects of the Company, the Operating Partnership, the Subsidiaries
and the Residential Development Corporations, considered as one
enterprise. To the knowledge of counsel, there are no contracts or
documents of the Company, the Operating Partnership or the Significant
Subsidiaries which are required to be filed as exhibits to the
Registration Statement by the 1933 Act or by the 1933 Act Regulations
which have not been filed or incorporated by reference as exhibits to
the Registration Statement.
(P) The Company qualified as a real estate investment trust
under the Code with respect to its taxable years ending on or before
December 31, 1996 and is organized in conformity with the requirements
for qualification as a real estate investment trust, its manner of
operation has enabled it to meet the requirements for qualification as a
real estate investment trust as of the date of the Prospectus
Supplement, and its proposed manner of operation will enable it to meet
the requirements for qualification as a real estate investment trust in
the future. In connection therewith, you are entitled to rely on the
opinions of Shaw, Pittman, Xxxxx & Xxxxxxxxxx filed as Exhibit 8.01 to
the Registration Statement, the opinions attached to such opinions as
exhibits thereto, and any other opinions rendered to the Company with
respect to tax matters and described in the International Prospectus,
all as if rendered to you on the date of Closing.
(Q) None of the Company, the Operating Partnership or any
Significant Subsidiary is required to be registered under the 1940 Act.
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(R) All authorizations, approvals and consents of any court or
governmental authority or agency that are necessary in connection with
the offering, issuance or sale of the International Securities under
this Agreement have been obtained, except such as may be required under
the 1933 Act or the 1933 Act Regulations or the securities and real
estate syndication laws of any U.S. state or other jurisdiction with
respect to the Securities.
(S) The Registration Statement has been declared effective under
the 1933 Act and, to the knowledge of counsel, no stop order suspending
the effectiveness of the Registration Statement has been issued under
the 1933 Act or proceedings therefor initiated or threatened by the
Commission.
(T) The Registration Statement and the International Prospectus
(other than the financial statements and supporting schedules included
therein, as to which no opinion need be rendered) as of their respective
effective or issue dates at the International Representation Date
complied as to form in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations. Each document filed pursuant
to the 1934 Act (other than the financial statements and supporting
schedules, included therein as to which no opinion need be rendered) and
incorporated or deemed to be incorporated by reference in the
International Prospectus complied when so filed or incorporated or
deemed to be incorporated as to form in all material respects with the
1934 Act and the 1934 Act Regulations.
(U) The information in the Registration Statement under the
captions "Description of Preferred Shares," "Description of Common
Shares," "Description of Common Share Warrants," "Certain Provisions of
the Declaration of Trust, Bylaws and Texas Law" and "ERISA
Considerations," to the extent applicable to the offering of the
International Securities and to the extent that it constitutes matters
of law or legal conclusions, has been reviewed by such counsel, is
correct and presents fairly the information required to be disclosed
therein.
(V) The information in the Prospectus Supplement under the
caption "Federal Income Tax Considerations" and in the International
Prospectus under the caption "Risks Relating to Qualification and
Operation as a REIT" fairly summarizes the federal income tax
considerations that are likely to be material to a holder of
International Securities and, to the extent that they constitute matters
of law or legal conclusions, they have been reviewed by such counsel,
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they are correct and present fairly the information required to be
disclosed therein.
In giving the opinions required by this Section 5(b)(i), such counsel
shall in addition provide the opinions referenced in the Prospectus Supplement
under the caption "Federal Income Tax Consequences."
In giving the opinions required by this Section 5(b)(i), such counsel
shall additionally state (which shall not constitute an opinion) that nothing
has come to the attention of such counsel that causes it to believe that the
Registration Statement or any post-effective amendment thereto (except for
financial statements and schedules and other financial data included therein or
omitted therefrom, as to which counsel need make no statement), at the time
such Registration Statement became effective under the 1933 Act, at the time an
Annual Report on Form 10-K or the latest Quarterly Report on Form 10-Q was
filed by the Company with the Commission (whichever is later), or at the date
of the applicable International Terms Agreement, at the International
Representation Date or as of the date such opinions are given, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or the International Prospectus or any Prospectus Supplement
(except for financial statements and schedules and other financial data
included therein, as to which counsel need make no statement), as of the date
of the applicable International Terms Agreement, at the International
Representation Date or as of the date of such opinion, included an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading.
In giving the opinions required by this Section 5(b)(i), Shaw, Pittman,
Xxxxx & Xxxxxxxxxx and Xxxxx Xxxxxxx Rain Xxxxxxx (A Professional Corporation)
may rely, (A) as to all matters of fact, upon certificates and written
statements of officers and employees of and accountants for each of the
Company, the Operating Partnership, the Subsidiaries or the Residential
Development Corporations; (B) as to the continued existence of the Company,
upon a certificate of an officer of the Company, and as to the qualification
and good standing of each of the Operating Partnership or a Significant
Subsidiary to do business in any jurisdiction, upon certificates of appropriate
government officials or opinions of counsel in such jurisdictions; and (C) as
to all Texas franchise tax matters, upon the opinion, dated as of Closing Time,
of Xxxxx Xxxxxxx Rain Xxxxxxx (A Professional Corporation).
The opinion of Xxxxx Xxxxxxx Rain Xxxxxxx (A Professional Corporation)
shall be limited to the laws of the State of Texas.
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(ii) The favorable opinion, dated as of Closing Time, of Xxxxx Xxxxxxx
Rain Xxxxxxx (A Professional Corporation), counsel to each of the
Company and the Operating Partnership, that it has reviewed the
discussion in the Prospectus Supplement under the caption
"Federal Income Tax Considerations - State and Local Taxes" with
respect to Texas franchise matters and is of the opinion that it
accurately summarizes the Texas franchise tax matters expressly
described therein.
(ii) The favorable opinion, dated as of Closing Time, of Xxxxx &
Xxxxxxx L.L.P., counsel for the International Underwriters, with
respect to the matters set forth in (A) (first sentence only),
(B) (first sentence only), (E) (first and fourth sentences only),
(F), (G), (H), (I), (K) (with respect to this Agreement and the
International Terms Agreement only), (S) and (T) (first sentence
only) of Section 5(b)(i) and a statement (which shall not
constitute an opinion) similar to the statement referred to in
the third to last paragraph of Section 5(b)(i) above. In giving
its opinion, Xxxxx & Xxxxxxx L.L.P. may rely, (A) as to all
matters of fact, upon certificates and written statements of
officers and employees of and accountants for each of the
Company, the Operating Partnership, the Subsidiaries or the
Residential Development Corporations, (B) as to the qualification
and good standing of each of the Company, the Operating
Partnership, or the Significant Subsidiaries to do business in
any state or jurisdiction, upon certificates of appropriate
government officials or opinions of counsel in such
jurisdictions, which opinions shall be in form and substance
satisfactory to counsel for the International Underwriters, and
(C) as to certain matters of law, upon the opinion of Shaw,
Pittman, Xxxxx & Xxxxxxxxxx given pursuant to Section 5(b)(i)
above.
(c) At Closing Time, (i) there shall not have been, since the
respective dates as of which information is given in the Registration
Statement and the International Prospectus, any material adverse change in
the condition, financial or otherwise, or in the earnings, assets, business
affairs or business prospects of the Company, the Operating Partnership,
the Subsidiaries, the Residential Development Corporations and the
Properties considered as one enterprise, whether or not arising in the
ordinary course of business, (ii) no proceedings shall be pending or, to
the knowledge of the Company or the Operating Partnership, threatened
against such entity before or by any federal, state or other commission,
board or administrative agency wherein an unfavorable decision, ruling or
finding might result in a material adverse change in the condition,
financial or otherwise, or in the
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earnings, assets, business affairs or business prospects of the Company,
the Operating Partnership, the Subsidiaries, the Residential Development
Corporations and the Properties considered as one enterprise other than
as set forth in the International Prospectus, (iii) no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceedings for that purpose shall
have been instituted or, to the knowledge of the Company or the
Operating Partnership, threatened by the Commission or by the state
securities authority of any jurisdiction, and (iv) you shall have
received, at Closing Time, a Certificate of the Chief Executive Officer
of the Company and the Operating Partnership, and the chief financial or
chief accounting officer of each such entity, dated as of Closing Time,
evidencing compliance with the provisions of this subsection (c),
stating that the representations and warranties set forth in Section
1(a) hereof are accurate as though expressly made at and as of Closing
Time, and stating that the conditions precedent set forth in this
Section 5 have been satisfied or waived. As used in this Section 5(c),
the term "International Prospectus" means the International Prospectus
in the form first used to confirm sales of the International Securities.
(d) At the time of execution of the applicable International
Terms Agreement, you shall have received from Xxxxxx Xxxxxxxx LLP a
letter dated such date, in form and substance satisfactory to you, to
the effect that: (i) they are independent public accountants with
respect to the Company and the Rainwater Property Group (as defined in
the financial statements included in the Registration Statement) as
required by the 1933 Act and the 1933 Act Regulations; (ii) it is their
opinion that the financial statements and supporting schedule included
in the Registration Statement and covered by their opinions therein
comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations;
(iii) they have performed limited procedures, not constituting an audit,
including a reading of the latest available consolidated interim
financial statements of the Company, a reading of the minute books of
the Company, inquiries of officials of the Company responsible for
financial and accounting matters and such other inquiries and procedures
as may be specified in such letter, and on the basis of such limited
review and procedures nothing came to their attention that caused them
to believe that (A) the unaudited financial statements and supporting
schedules of the Rainwater Property Group included in the Registration
Statement do not comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations or are not in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of the
audited financial statements included in the Registration Statement, (B)
the unaudited operating data and balance sheet data of the Company set
forth in the Prospectuses under
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the caption "Selected Financial Information" were not determined on a
basis substantially consistent with that used in determining the
corresponding amounts in the audited financial statements included in
the Registration Statement, (C) the pro forma financial information
included in the Registration Statement was not prepared in accordance
with the applicable accounting requirements of the 1933 Act and the 1933
Act Regulations with respect to pro forma financial information or was
not determined on a basis substantially consistent with that of the
audited financial statements included in the Registration Statement or
(D) at a specified date not more than three days prior to the date of
the applicable International Terms Agreement, there has been any change
in the shareholders' equity or debt of the Company or any increase in
the debt of the Company or any decrease in the net assets of the
Company, as compared with the amounts shown in the most recent
consolidated balance sheet of the Company included in the Registration
Statement or, during the period from most recent consolidated statement
of operations included in the Registration Statement to a specified date
not more than three days prior to the date of the applicable
International Terms Agreement, there were any decreases, as compared
with the corresponding period in the preceding year, in revenues, net
income or funds from operations of the Company, except in all instances
for changes, increases or decreases which the Registration Statement and
the Prospectus disclose have occurred or may occur; and (iv) in addition
to the examination referred to in their opinions and the limited
procedures referred to in clause (iii) above, they have carried out
certain specified procedures, not constituting an audit, with respect to
certain amounts, percentages and financial and statistical information
which are included in the Registration Statement and the International
Prospectus and which are specified by you, and have found such amounts,
percentages and financial and statistical information to be in agreement
with the relevant accounting, financial and other records of the Company
identified in such letter.
(e) At Closing Time, you shall have received from Xxxxxx
Xxxxxxxx LLP a letter dated as of Closing Time to the effect that they
reaffirm the statements made in the letter furnished pursuant to
subsection (d) of this Section 5, except that the "specified date"
referred to shall be a date not more than three days prior to Closing
Time and, if the Company has elected to rely upon Rule 430A of the 1933
Act Regulations, to the further effect that they have carried out
procedures as specified in clause (iv) of subsection (d) of this Section
5 with respect to certain amounts, percentages and financial information
specified by you and deemed to be a part of the Registration Statement
pursuant to Rule 430A(b) and have found such amounts, percentages and
financial information to be in agreement with the records specified in
such clause (iv).
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(f) At Closing Time, counsel for the International Underwriters shall
have been furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance and sale
of the International Securities as herein contemplated and related
proceedings, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained, and all proceedings taken by the Company in connection
with the issuance and sale of the International Securities as contemplated
in the applicable International Terms Agreement shall be satisfactory in
form and substance to you and counsel for the International Underwriters.
(g) In the event the International Underwriters exercise their option
provided in a International Terms Agreement as set forth in Section 2(b)
hereof to purchase all or any portion of the International Option
Securities, the representations and warranties of the Company and the
Operating Partnership contained herein and the statements in any
certificates furnished by the Company and the Operating Partnership
hereunder shall be true and correct as of each Date of Delivery, and you
shall have received:
(i) A certificate of the Chief Executive Officer or the President and
Chief Operating Officer, of the Company and the Operating
Partnership and the chief financial or chief accounting officer
of each such entity, dated such Date of Delivery, confirming that
the certificate delivered at Closing Time pursuant to Section
5(c) hereof remains true and correct as of such Date of Delivery.
(ii) The favorable opinions of Shaw, Pittman, Xxxxx & Xxxxxxxxxx,
counsel for each of the Company, the Operating Partnership and
the Significant Subsidiaries and Xxxxx Xxxxxxx Rain Xxxxxxx (A
Professional Corporation), special counsel for the Texas
Entities, each in form and substance satisfactory to counsel for
the International Underwriters, dated such Date of Delivery,
relating to the International Option Securities and otherwise to
the same effect as the opinion and statement required by Section
5(b)(i) hereof.
(iii) The favorable opinion of Xxxxx Xxxxxxx Rain Xxxxxxx (A
Professional Corporation), counsel to each of the Company and the
Operating Partnership, dated such Date of Delivery, with respect
to all Texas franchise tax matters and otherwise to the same
effect as the opinion required by Section 5(b)(ii) hereof.
(iv) The favorable opinion of Xxxxx & Xxxxxxx L.L.P., counsel for the
International Underwriters, dated such Date of Delivery,
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relating to the International Option Securities and otherwise to
the same effect as the opinion and statement required by Section
5(b)(iii) hereof.
(v) A letter from Xxxxxx Xxxxxxxx LLP, in form and substance
satisfactory to you, dated such Date of Delivery, substantially
the same in scope and substance as the letter furnished to you
pursuant to Section 5(e) hereof, except that the "specified date"
in the letter furnished pursuant to this Section 5(g)(iv) shall
be a date not more than three days prior to such Date of
Delivery.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, the applicable International
Terms Agreement may be terminated by you by notice to the Company at any time
at or prior to Closing Time, and such termination shall be without liability of
any party to any other party or Date of Delivery, as the case may be, except as
provided in Section 4 hereof.
SECTION 6. INDEMNIFICATION.
(a) Each of the Company and the Operating Partnership agrees, jointly
and severally, to indemnify and hold harmless each Underwriter and each person,
if any, who controls any Underwriter within the meaning of section 15 of the
1933 Act, and any director, officer, employee or affiliate thereof, as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment
thereto), including the information deemed to be part of the
Registration Statement pursuant to Rule 430A(b) of the 1933
Act Regulations, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged
untrue statement of a material fact contained in any
preliminary prospectus or the International Prospectus or
the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made,
not misleading; provided, however, that neither the Company
nor the Operating Partnership shall be required under this
subsection (i) to indemnify any Underwriter with respect to
any loss, liability, claim, damage or expense to the extent
such loss, liability, claim, damage or expense arises out of
any untrue
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statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with
written information furnished to the Company by you
specifically for inclusion in the Registration Statement or
the International Prospectus;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation or of
any investigation or proceeding by any governmental agency
or body, commenced or threatened, or of any claim whatsoever
for which indemnification is provided under subsection (i)
above, if such settlement is effected with the written
consent of the Company and the Operating Partnership; and
(iii) against any and all expense whatsoever (including, without
limitation, the fees and other charges of counsel chosen by
you) reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or
proceedings by any governmental agency or body, commenced or
threatened, or any claim whatsoever for which
indemnification is provided under subsection (i) above, to
the extent that any such expense is not paid under
subsection (i) or (ii) above.
(b) Each International Underwriter severally agrees to indemnify and
hold harmless the Company and the Operating Partnership, and each person, if
any, who controls the Company or the Operating Partnership within the meaning
of Section 15 of the 1933 Act, and any trust manager, director, officer,
employee or affiliate thereof, against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a) of
this Section 6, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
International Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the Company by you
specifically for inclusion in the Registration Statement or the International
Prospectus.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. An indemnifying party
may participate at its
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own expense in the defense of such action. If it so elects within a reasonable
time after receipt of such notice, an indemnifying party, jointly with any
other indemnifying parties receiving such notice, may assume the defense of
such action with counsel chosen by it and approved by the indemnified parties
defendant in such action, unless such indemnified parties reasonably object to
such assumption on the ground that the named parties to any such action
(including any impleaded parties) include both such indemnified parties and an
indemnifying party, and such indemnified parties reasonably believe that there
may be legal defenses available to them which are different from or in addition
to those available to such indemnifying party. If an indemnifying party
assumes the defense of such action, the indemnifying parties shall not be
liable for any fees and expenses of counsel for the indemnified parties
incurred thereafter in connection with such action. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim 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
any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement
at least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
SECTION 7. CONTRIBUTION.
If the indemnification provided for in Section 6 hereof is for any
reasons unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein,
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then each indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company, on the one hand, and the
International Underwriters, on the other hand, from the offering of the
International Securities pursuant to the applicable International Terms
Agreement or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault
of the Company, on the one hand, and of the International Underwriters, on the
other hand, in connection with the statements or omissions which resulted in
such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the
International Underwriters, on the other hand, in connection with the offering
of the International Securities pursuant to the applicable International Terms
Agreement shall be deemed to be in the same respective proportions as the total
net proceeds from the offering of such International Securities (before
deducting expenses) received by the Company and the total underwriting discount
received by the International Underwriters, in each case as set forth on the
cover of the International Prospectus, or, if Rule 434 is used, the
corresponding location on the International Term Sheet bear to the aggregate
initial public offering price of such International Securities as set forth on
such cover.
The relative fault of the Company, on the one hand, and the
International Underwriters, on the other hand, shall be determined by reference
to, among other things, whether any such untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
and opportunity to correct or prevent such statement or omission.
The Company and the International Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the International 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 above
in this Section 7. The aggregate amount of losses, liabilities, claims,
damages and expenses incurred by an indemnified party and referred to above in
this Section 7 shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission or alleged
omission.
Notwithstanding the provisions of this Section 7, no International
Underwriter shall be required to contribute any amount in excess of the amount
by
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which the total price at which the International Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such International Underwriter has otherwise been required to
pay by reason of any 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 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
International Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
International Underwriter, and each director of the Company, each officer of
the Company who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the
Company. The International Underwriters' respective obligations to contribute
pursuant to this Section 7 are several in proportion to the number or aggregate
principal amount, as the case may be, of Initial International Securities set
forth opposite their respective names in the applicable International Terms
Agreement, and not joint.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this
Agreement and the International Terms Agreement, or contained in certificates
of officers of the Company or the Operating Partnership submitted pursuant
hereto, shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any International Underwriter or any
controlling person, or by or on behalf of the Company or the Operating
Partnership or any controlling persons, and shall survive delivery of the
International Securities to the International Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) This Agreement (excluding the applicable International Terms
Agreement) may be terminated for any reason at any time by the
Company or by you upon the giving of 30 days' written notice of
such termination to the other party hereto, provided that the
continued effectiveness of this Agreement shall not in any way
limit or prohibit the Company's right to offer any or all of the
Securities through any other underwriter or pursuant to any other
selling arrangement.
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(b) You may also terminate the applicable International Terms
Agreement, by notice to the Company, at any time at or prior to
Closing Time, (i) if there has been, since the date of such
International Terms Agreement or since the respective dates as of
which information is given in the International Prospectus, any
material adverse change in the condition, financial or otherwise,
or in the earnings, assets, business affairs or business
prospects of the Company, the Operating Partnership, the
Subsidiaries and the Residential Development Corporations
considered as one enterprise, whether or not arising in the
ordinary course of business, (ii) if there has occurred any
material adverse change in the financial markets in the United
States or any outbreak of hostilities or other calamity or crisis
or escalation of any existing hostilities, or any change or
development involving a prospective change in national or
international political, financial or economic conditions, in
each case the effect of which is such as to make it, in your
judgment, impracticable to market the International Securities or
enforce contracts for the sale of the International Securities,
(iii) if trading in any of the securities of the Company has been
suspended or limited by the Commission or on any exchange or any
over-the-counter market, or if trading generally on either the
New York Stock Exchange or the American Stock Exchange or in the
NASDAQ Stock Market's National Market has been suspended or
limited, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices for securities have been
required, by either of said exchanges or by order of the
Commission or any other governmental authority, or if a banking
moratorium has been declared by federal or New York authorities,
(iv) if the rating assigned by any nationally recognized
statistical rating organization to any Preferred Shares of the
Company or any indebtedness of the Company or the Operating
Partnership as of the date of the applicable International Terms
Agreement shall have been lowered since such date or if any such
rating organization shall have publicly announced that it has
placed any Preferred Shares of the Company or any indebtedness of
the Company or the Operating Partnership on what is commonly
termed a "watch list" for possible downgrading, (v) a banking
moratorium has been declared by either Federal or New York
authorities, or (vi) pursuant to Section 10(b) below. As used in
this Section 9(b), the term "Prospectus" means the Prospectus in
the form first used to confirm sales of the International
Securities.
(c) In the event of any such termination, (x) the covenants set forth
in Section 3 hereof with respect to any offering of International
Securities shall remain in effect so long as any International
Underwriter owns any International Securities purchased from the
Company pursuant to
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the applicable International Terms Agreement and (y) the covenant
set forth in Section 3(h) hereof, the provisions of Section 4
hereof, the indemnity and contribution agreements set forth in
Sections 6 and 7 hereof, and the provisions of Sections 8 and 13
hereof shall remain in effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE INTERNATIONAL UNDERWRITERS.
If one or more of the International Underwriters shall fail at
Closing Time to purchase the International Securities which it or they are
obligated to purchase under the applicable International Terms Agreement (the
"DEFAULTED SHARES"), then you shall have the right, within 24 hours thereafter,
to make arrangements for one or more of the non-defaulting International
Underwriters, or any other International Underwriters, to purchase all, but not
less than all, of the Defaulted Shares in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, you shall not have completed
such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Shares does not exceed ten percent
(10%) of the Initial International Securities to be purchased
pursuant to the International Terms Agreement, the non-defaulting
International Underwriters named in such International Terms
Agreement shall be obligated to purchase the full amount thereof
in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-
defaulting International Underwriters; or
(b) if the number of Defaulted Shares exceeds ten percent (10%) of
the Initial International Securities to be purchased pursuant to
the International Terms Agreement, the applicable International
Terms Agreement shall terminate without liability on the part of
any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting International Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, you and the Company each shall have the right to
postpone Closing Time for a period not exceeding seven days in order to effect
any required changes in the Registration Statement or Prospectuses or in any
other documents or arrangements.
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SECTION 11. NOTICES.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any
standard form of telecommunication. Notices to the International Underwriters
shall be directed to Xxxxxxx Xxxxx International, 00 Xxxxxxxxxx Xxxx, Xxxxxx
XX0X 0XX Xxxxxxx; notices to either the Company or the Operating Partnership
shall be directed to each of them, c/o the Operating Partnership at 000 Xxxx
Xxxxxx, Xxxxx 0000, Xxxx Xxxxx, Xxxxx, 00000, attention of Xxxx X. Xxxx, Chief
Executive Officer of the Operating Partnership.
SECTION 12. PARTIES.
This Agreement and the applicable International Terms Agreement shall
each inure to the benefit of and be binding upon the parties hereto and thereto
and their respective successors, heirs and legal representatives. Nothing
expressed or mentioned in this Agreement or the applicable International Terms
Agreement is intended or shall be construed to give any person, firm or
corporation, other than those referred to in Sections 6 and 7 hereof and their
successors, heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or the applicable
International Terms Agreement or any provision herein or therein contained.
This Agreement and the applicable International Terms Agreement and all
conditions and provisions hereof and thereof are intended to be for the sole
and exclusive benefit of the parties hereto and thereto and their respective
successors, and said controlling persons and officers, directors and trust
managers and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of International Securities
from any International Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME.
This Agreement and the applicable International Terms Agreement shall be
governed by and construed in accordance with the laws of the State of New York
applicable to agreements made and to be performed in said State. Specified
times of day refer to New York City time.
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If the foregoing is in accordance with your understanding of our
agreement please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the International Underwriters, the Company and the Operating Partnership
in accordance with its terms.
Very truly yours,
CRESCENT REAL ESTATE EQUITIES
COMPANY
By:
---------------------------------
CRESCENT REAL ESTATE EQUITIES
LIMITED PARTNERSHIP
By: Crescent Real Estate Equities, Ltd.
General Partner
By:
--------------------------
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX INTERNATIONAL
By: Xxxxxxx Xxxxx International
By:
----------------------------
Xxxxxxx X. Xxxxxxxxx
Managing Director
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CRESCENT REAL ESTATE EQUITIES COMPANY
(a Texas real estate investment trust)
[Title of Securities]
FORM OF INTERNATIONAL TERMS AGREEMENT
Dated: ____________ __, 1997
To: CRESCENT REAL ESTATE EQUITIES COMPANY
000 Xxxx Xxxxxx
Xxxx Xxxxx, Xxxxx 00000
Attention:
Ladies and Gentlemen:
We (the "International Underwriters") understand that Crescent Real
Estate Equities Company ("the Company") proposes to issue and sell the number
of its [Preferred Shares of Beneficial Interest, $.01 par value per share (the
"Preferred Shares")] [Common Shares of Beneficial Interest, $.01 par value per
share (the "Common Shares")] [Warrants to purchase Common Shares of the Company
(the "Warrants")] (such [Preferred Shares] [Common Shares] [Warrants] being
collectively hereinafter referred to as the "International Securities").
Subject to the terms and conditions set forth or incorporated by reference
herein, the International Underwriters named below offer to purchase, severally
and not jointly, the respective numbers of Initial International Securities (as
defined in the International Purchase Agreement referred to below) set forth
below opposite their respective names, and a proportionate share of
International Option Securities (as defined in the International Purchase
Agreement referred to below) to the extent any are purchased, at the purchase
price set forth below.
Number of Shares of Initial
International Underwriter International Securities
------------------------- ------------------------------
------------------
Total $
==================
53
The International Securities shall have the following terms:
[Preferred Shares] [Common Shares] [Warrants]
Title of Securities:
Number of Shares:
[Current Ratings:]
[Dividend Rate: [$ ] [ %], Payable:]
[Stated Value:]
[Liquidation Preference:]
[Ranking:]
Public offering price per share: $ [, plus accumulated dividends, if any,
from , 19 .]
Purchase price per share: $ [, plus accumulated dividends, if any, from
, 19 .]
[Conversion provisions:]
[Redemption provisions:]
[Sinking fund requirements:]
Number of International Option Securities, if any, that may be purchased by the
International Underwriters:
Delayed Delivery Contracts: [authorized] [not authorized]
[Date of Delivery:
Minimum Contract:
Maximum number of Shares:
Fee:
Additional co-managers, if any:
Other terms:
Closing date and location:
[Warrants]
Number of Warrants to be issued:
Warrant Agent:
Issuable jointly with Common Shares [yes] [no]
[Number of Warrants issued with each Common Share of beneficial
interest:]
[Detachable data:]
Date from which Warrants are exercisable:
Date on which Warrants expire:
Exercise Price(s) of Warrants:
Initial public offering price: $
Purchase price: $
Title of Warrant Securities:
Principal amount purchasable upon exercise of one Warrant:
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Interest rate: Payable:
Date of maturity:
Redemption provisions:
Sinking fund requirements:
[Delayed Delivery Contracts: [authorized] [not authorized]
[Date of delivery:
Minimum contract:
Maximum aggregate principal amount:
Fee: %]
Other terms:
[Closing date and location:]
All the provisions contained in the document attached as Exhibit
A hereto entitled "Crescent Real Estate Equities Company--Preferred Shares of
Beneficial Interest, Common Shares of Beneficial Interest, and Common Share
Warrants--Purchase Agreement" are hereby incorporated by reference in their
entirety herein and shall be deemed to be a part of this International Terms
Agreement to the same extent as if such provisions had been set forth in full
herein. Terms defined in such document are used herein as therein defined.
- 3 -
55
Please accept this offer no later than ________ o'clock P.M. (New York City
time) on ______________ by signing a copy of this International Terms Agreement
in the space set forth below and returning the signed copy to us.
Very truly yours
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
---------------------------------------
Acting on behalf of itself and the other
named International Underwriters.
Accepted:
By: CRESCENT REAL ESTATE EQUITIES COMPANY
By:
---------------------------------
Name:
Title:
-0-
00
XXXXXXXX XXXX XXXXXX EQUITIES COMPANY
(a Texas real estate investment trust)
[Title of Securities]
DELAYED DELIVERY CONTRACT
Dated: ____________ __, 1997
To: CRESCENT REAL ESTATE EQUITIES COMPANY
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: ___________________
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Crescent Real Estate
Equities, Inc. ("the Company"), and the Company agrees to sell to the
undersigned on ___________ ___, 19__ (the "Delivery Date"),
_____________________________ of the Company's [insert title of security] (the
"Securities"), offered by the Company's International Prospectus dated
____________ ___, 19__, as supplemented by its Prospectus Supplement dated
___________ _____, 19__, receipt of which is hereby acknowledged, at a
purchase price of [$ _________] to the Delivery Date and on the further terms
and conditions set forth in this contract.
Payment for the Securities which the undersigned has agreed to purchase
on the Delivery Date shall be made to the Company or its order by [certified or
official bank check in New York Clearing House] [same day] funds at the office
of ____________________________________________________, on the Delivery Date,
upon delivery to the undersigned of the Securities to be purchased by the
undersigned in definitive form and in such denominations and registered in such
names as the undersigned may designate by written or telegraphic communication
addressed to the Company not less than five full business days prior to the
Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date shall be subject only to the conditions
that (1) the purchase of Securities to be made by the undersigned shall not on
the Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company, on or before _________ __, 19__,
shall have sold to the International Underwriters of the Securities (the
"International
57
Underwriters") such principal amount of the Securities as is to be sold to them
pursuant to the International Terms Agreement dated ____________, 19__ between
the Company and the International Underwriters. The obligation of the
undersigned to take delivery of and make payment for Securities shall not be
affected by the failure of any purchaser to take delivery of and make payments
for Securities pursuant to other contracts similar to this contract. The
undersigned represents and warrants to you that its investment in the
Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which govern such
investment.
Promptly after completion of the sale to the International Underwriters,
the Company will mail or deliver to the undersigned at its address set forth
below notice to such effect, accompanied by a copy of the opinions of counsel
for the Company delivered to the International Underwriters in connection
therewith.
By the execution hereof, the undersigned represents and warrants to the
Company that all necessary corporate action for the due execution and delivery
of this contract and the payment for and purchase of the Securities has been
taken by it and no further authorization or approval of any governmental or
other regulatory authority is required for such execution, delivery, payment or
purchase, and that, upon acceptance hereof by the Company and mailing or
delivery of a copy as provided below, this contract will constitute a valid and
binding agreement of the undersigned in accordance with its terms.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed Delivery
Contracts for a number of Securities in excess of ______ and that the
acceptance of any Delayed Delivery Contract is in the Company's sole discretion
and, without limiting the foregoing, need not be on a first-come, first-served
basis. If this contract is acceptable to the Company, it is requested that the
Company sign the form of acceptance on a copy hereof and mail or deliver a
signed copy hereof to the undersigned at its address set forth below. This
will become a binding contract between the Company and the undersigned when
such copy is so mailed or delivered.
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58
This Agreement shall be governed by the laws of the State of New York.
Yours very truly,
---------------------------------------
(Name of Purchaser)
By:
------------------------------------
Title:
---------------------------------
---------------------------------------
---------------------------------------
(Address)
Accepted as of the date first above written.
Crescent Real Estate Equities Company
By:
-------------------------------------
Name:
Title:
PURCHASER--PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser
with whom details of delivery on the Delivery Date may be discussed are as
follows: (Please print.)
Telephone No.
Name (including Area Code)
---- ---------------------
----------------------------------- -----------------------------
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