EXHIBIT 99.2
ARCHSTONE - XXXXX OPERATING TRUST
Debt Securities
Underwriting Agreement
February 12, 0000
XXXX XX XXXXXXX SECURITIES LLC
X. X. XXXXXX SECURITIES INC.
As representative of the several Underwriters
c/o Banc of America Securities LLC
Banc of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Dear Ladies and Gentlemen:
Archstone Xxxxx - Operating Trust, a real estate investment trust
organized under the laws of the State of Maryland (the "Company"), proposes to
issue and sell to the several underwriters names in Schedule I hereto (the
"Underwriters"), the principal amount of its debt securities identified in
Schedule I hereto (the "Securities"), to be issued under the indenture specified
in Schedule I hereto (the "Indenture") between the Company and the Trustee
identified in such Schedule (the "Trustee").
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement (the file number of which is set forth in Schedule I hereto) on Form
S-3, relating to certain debt securities (the "Shelf Securities") to be issued
from time to time by the Company. The Company also has filed with, or proposes
to file with, the Commission pursuant to Rule 424 under the Securities Act a
prospectus supplement specifically relating to the Securities. The registration
statement as amended to the date of this Agreement
is hereinafter referred to as the "Registration Statement" and the related
prospectus covering the Shelf Securities in the form used to confirm sales of
the Securities is hereinafter referred to as the "Basic Prospectus." The Basic
Prospectus as supplemented by the prospectus supplement specifically relating
to the Securities in the form used to confirm sales of the Securities is
hereinafter referred to as the "Prospectus." Any reference in this Agreement to
the Registration Statement, the Basic Prospectus, or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act which were filed under
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the Commission thereunder (collectively, the "Exchange Act") or under the
Securities Act on or before the date of this Agreement or the date of the Basic
Prospectus or the Prospectus, as the case may be; and any reference to "amend",
"amendment" or "supplement" with respect to the Registration Statement, the
Basic Prospectus or the Prospectus shall be deemed to refer to and include any
documents filed under the Exchange Act after the date of this Agreement, or the
date of the Basic Prospectus or the Prospectus, as the case may be, which are
deemed to be incorporated by reference therein.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities to the
Underwriters as hereinafter provided, and the Underwriters, on the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agree to purchase from the Company the principal amount of
Securities set forth in Schedule I hereto at the purchase price set forth in
Schedule I hereto plus accrued interest, if any, from the date specified in
Schedule I hereto to the date of payment and delivery.
2. The Company understands that the Underwriters intend (i) to make
a public offering of the Securities and (ii) initially to offer the Securities
upon the terms set forth in the Prospectus.
3. Payment for the Securities shall be made to the Company or to its
order in immediately available funds on the date and at the time and place set
forth in Schedule I hereto (or at such other time and place on the same or such
other date, not later than the third Business Day thereafter, as the
Underwriters and the Company may agree in writing). Such payment will be made
upon delivery to the Underwriters of the Securities registered in such names and
in such denominations as the Underwriters shall request not less than two full
Business Days prior to the date of delivery, with any transfer taxes payable in
connection with the transfer to the
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Underwriters duly paid by the Company. As used herein, the term "Business Day"
means any day other than a day on which banks are permitted or required to be
closed in New York City. The time and date of such payment and delivery with
respect to the Securities are referred to herein as the "Closing Date." The
certificates for the Securities will be made available for inspection and
packaging by the Underwriters by 1:00 P.M. on the Business Day prior to the
Closing Date at such place in New York City as the Underwriters and the Company
shall agree.
4. The Company represents and warrants to the Underwriters that:
(a) the Registration Statement has been declared effective by the
Commission under the Securities Act; no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceeding for that purpose
has been instituted or, to the knowledge of the Company, threatened by the
Commission; and the Registration Statement and Prospectus (as amended or
supplemented, if applicable) comply, or will comply, as the case may be, in all
material respects with the Securities Act and the Trust Indenture Act of 1939,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Trust Indenture Act"), and do not and will not, as of the
applicable effective date as to the Registration Statement and any amendment
thereto and as of the date of the Prospectus and any amendment or supplement
thereto, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in the case of the Prospectus, in the light of the circumstances under
which they were made, not misleading, and the Prospectus, as amended or
supplemented at the Closing Date, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; except that the foregoing representations and warranties
shall not apply to (i) that part of the Registration Statement which constitutes
the Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee, and (ii) statements or omissions in the
Registration Statement or the Prospectus made in reliance upon and in conformity
with information relating to the Underwriters furnished to the Company in
writing by the Underwriters expressly for use therein;
(b) the documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects to the
requirements of the Exchange Act or the Securities Act, as applicable, and none
of such documents contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in the light of
the circum-
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stances under which they were made, not misleading; and any further documents so
filed and incorporated by reference in the Prospectus, when such documents are
filed with the Commission will conform in all material respects to the
requirements of the Exchange Act, as applicable, and will not contain an untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading;
(c) Each of KPMG LLP and Xxxxxx Xxxxxxxx LLP, who have certified the
financial statements filed with the Commission as part of the Registration
Statement and the Prospectus or incorporated therein, are independent public
accountants as required by the Securities Act;
(d) the financial statements and the related notes thereto, included
or incorporated by reference in the Registration Statement and the Prospectus,
present fairly the consolidated financial position of the Company and its
consolidated subsidiaries and the entities which were acquired by or merged into
the Company (the "Company Group") as of the dates indicated and the results of
their operations and the changes in their consolidated cash flows for the period
specified; the financial statements with respect to the properties acquired or
to be acquired by the Company or the entities which were acquired by or merged
into the Company, together with related notes and schedules as set forth or
incorporated by reference in the Registration Statement or the Prospectus,
present fairly the financial position and the results of operations of such
properties at the indicated dates and for the indicated periods; the foregoing
financial statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis, and the supporting
schedules included or incorporated by reference in the Registration Statement or
the Prospectus present fairly the information required to be stated therein; the
financial information and statistical data included or incorporated by reference
in the Registration Statement or the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with the financial
statements presented therein; and the pro forma financial information, and the
related notes thereto, included or incorporated by reference in the Registration
Statement and the Prospectus has been prepared in accordance with the
applicable requirements of the Securities Act and the Exchange Act, as
applicable;
(e) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, business prospects, management,
financial position, shareholders' equity or results of operations of the
Company and its Subsidiaries
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(as defined below), taken as a whole, otherwise than as set forth or
contemplated in the Prospectus; and except as set forth or contemplated in the
Prospectus neither the Company nor any of its Subsidiaries has entered into any
transaction or agreement (whether or not in the ordinary course of business)
material to the Company and its Subsidiaries taken as a whole;
(f) the Company has been duly organized and is validly existing as a
real estate investment trust of unlimited duration with transferable shares of
beneficial interest in good standing under the laws of the State of Maryland,
with power and authority (trust or other) to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified for the
transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any business, so
as to require such qualification, other than where the failure to be so
qualified or in good standing would not have a material adverse effect on the
Company and its Subsidiaries taken as a whole;
(g) each of the Company's subsidiaries (within the meaning of the
Securities Act) is listed in Schedule II hereto (the "Subsidiaries") and has
been duly incorporated or organized and is validly existing as a corporation,
limited liability company or limited partnership, as the case may be, under the
laws of its jurisdiction of incorporation, formation or organization, with power
and authority (corporate or other) to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified as a
foreign entity or limited partnership, as the case may be, for the transaction
of business and is in good standing under the laws of each jurisdiction in which
it owns or leases properties or conducts any business so as to require such
qualification, other than where the failure to be so qualified or in good
standing would not have a material adverse effect on the Company and its
Subsidiaries taken as a whole; and all the outstanding equity securities of
each subsidiary of the Company have been duly authorized and validly issued, are
fully-paid and non-assessable, and (except for general partnership interests or
in the case of foreign Subsidiaries, for directors' qualifying shares) are
owned by the Company, directly or indirectly, free and clear of all liens,
encumbrances, security interests and claims;
(h) neither the Company nor any of its Subsidiaries is party to any
joint venture with any other entity, except as described or incorporated by
reference in the Prospectus;
(i) this Agreement has been duly authorized, executed and delivered
by the Company and constitutes the valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, subject to
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bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and the effect of general principles of equity, and except as rights to
indemnity and contribution hereunder may be limited by applicable law;
(j) the Securities have been duly authorized, and, when issued,
authenticated and delivered pursuant to this Agreement and the Indenture, will
have been duly executed, authenticated, issued and delivered and will constitute
valid and binding obligations of the Company entitled to the benefits provided
by the Indenture and enforceable against the Company in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and the effect of general principles of equity; the Indenture
has been duly authorized, executed and delivered by the Company and constitutes
a valid and binding agreement enforceable against the Company in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating
to or affecting creditors' rights and the effect of general principles of
equity; the Indenture has been duly qualified under the Trust Indenture Act; and
the Securities and the Indenture will conform to the descriptions thereof in the
Prospectus in all material respects;
(k) neither the Company nor any of the Subsidiaries is, nor with the
giving of notice or lapse of time or both would be, in violation of or in
default under, (i) its Amended and Restated Declaration of Trust or By-Laws, or
(ii) joint venture agreement, partnership agreement or other governing
instruments or any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its Subsidiaries is a
party or by which it or any of them or any of their respective properties is
bound, except in the case of (ii) for violations and defaults which individually
and in the aggregate are not material to the Company and its Subsidiaries taken
as a whole or to the holders of the Securities; the issue and sale of the
Securities and the performance by the Company of all of the provisions of its
obligations under the Securities, the Indenture and this Agreement and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument to which the Company or any
of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound or to which any of the property or assets of the Company
or any of its Subsidiaries is subject, nor will any such action result in any
violation of the provisions of the Amended and Restated Declaration of Trust or
the By-Laws of the Company or any applicable law or statute
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or any order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company, its Subsidiaries or any of their
respective properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental agency
or body is required for the issue and sale of the Securities or the consummation
by the Company of the transactions contemplated by this Agreement or the
Indenture, except such consents, approvals, authorizations, registrations or
qualifications as have been obtained under the Securities Act, the Trust
Indenture Act and as may be required under state securities or Blue Sky Laws in
connection with the purchase and distribution of the Securities by the
Underwriters or consents, the failure of which to obtain would not have a
material adverse effect on the Company and its Subsidiaries taken as a whole or
on the consummation of the transactions contemplated by this Agreement or the
Indenture or on the validity and enforceability of the Securities and the
Indenture;
(l) the Company is not an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended;
(m) other than as set forth or contemplated in the Prospectus, there
are no legal or governmental proceedings pending or, to the knowledge of the
Company, threatened to which the Company or any of its Subsidiaries is or may be
a party or to which any property of the Company or any of its Subsidiaries is or
may be the subject which, if determined adversely to the Company or any of its
Subsidiaries, could individually or in the aggregate reasonably be expected to
have a material adverse effect on the general affairs, business prospects,
management, consolidated financial position, shareholders' equity or results of
operations of the Company and its Subsidiaries taken as a whole and, to the best
of the Company's knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others; and there are no contracts
or other documents of a character required to be filed as an exhibit to the
Registration Statement or required to be described in the Registration Statement
or the Prospectus which are not filed or described as required;
(n) the Company's authorized, issued and outstanding shares of
beneficial interest is set forth or incorporated by reference in the Prospectus;
and all of the issued shares of beneficial interest have been duly and validly
authorized and issued, are fully paid and non-assessable;
(o) the Company and each of its Subsidiaries have good and
marketable title in fee simple to all real property described in the
Prospectus as owned by
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them and good and marketable title to all personal property owned by them, in
each case free and clear of all liens, encumbrances and defects except such as
are described in the Prospectus or such as do not materially affect the value
of such property and do not interfere with the use made and proposed to be made
of such property by the Company and its Subsidiaries; and any real property and
buildings held under lease by the Company and its Subsidiaries and described in
the Prospectus are held by them under valid and subsisting leases with such
exceptions as are not material and do not interfere with the use made and
proposed to be made of such property and buildings by the Company and its
Subsidiaries;
(p) the Company and its Subsidiaries taken as a whole carry, or are
covered by, insurance in such amounts and covering such risks as is adequate for
the conduct of their business and the value of their properties;
(q) for the fiscal year ended December 31, 1996 through the period
ended October 29, 2001, the Company met the requirements for qualification as a
real estate investment trust under Sections 856 through 860 of the Internal
Revenue Code, as amended;
(r) all material Tax returns required to be filed by the Company
Group have been filed and all such returns are true, complete, and correct in
all material respects. All material Taxes that are due or claimed to be due
from the Company Group have been paid other than those (i) currently payable
without penalty or interest or (ii) being contested in good faith and by
appropriate proceedings and for which, in the case of both clauses (i) and (ii),
adequate reserves have been established on the books and records of the Company
Group in accordance with GAAP. There are no proposed material Tax assessments
against the Company Group. To the best knowledge and belief of the Company, the
accruals and reserves on the books and records of the Company Group in respect
of any material Tax liability for any Taxable period not finally determined are
adequate to meet any assessments of Tax for any such period. For purposes of
this Agreement, the term "Tax" and "Taxes" shall mean all Federal, state, local
and foreign taxes, and other assessments of a similar nature (whether imposed
directly or through withholding), including any interest, additions to tax, or
penalties applicable thereto;
(s) each of the Company and its Subsidiaries owns, possesses or has
obtained all licenses, permits, certificates, consents, orders, approvals and
other authorizations from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities (including foreign
regulatory agencies), all self-regulatory organizations and all courts and other
tribunals, domestic or foreign,
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necessary to own or lease, as the case may be, and to operate its properties and
to carry on its business as conducted as of the date hereof, except in each case
where the failure to obtain licenses, permits, certificates, consents, orders,
approvals and other authorizations, or to make all declarations and filings,
would not have a material adverse effect on the general affairs, business
prospects, management, financial position, shareholders' equity or results of
operations of the Company and its Subsidiaries taken as a whole, and none of the
Company or any of its Subsidiaries has received any notice of any proceeding
relating to revocation or modification of any such license, permit,
certificate, consent, order, approval or other authorization, except as
described in the Registration Statement and the Prospectus and except, in each
case, where such revocation or modification would not have a material adverse
effect; and the Company and each of its Subsidiaries are in material compliance
with all laws, rules and regulations relating to the conduct of their respective
businesses as conducted as of the date hereof, except where noncompliance with
such laws or regulations would not have a material adverse effect;
(t) except as disclosed in the Prospectus, the Company and its
Subsidiaries (i) are in compliance with any and all applicable foreign, federal,
state and local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), (ii) have received all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their business, (iii) are in compliance with all
terms and conditions of any such permit, license or approval and (iv) have no
knowledge of the unlawful presence of any hazardous substances, hazardous
materials, toxic substances or waste materials on any of the properties owned by
them, or of any unlawful spills, releases, discharges or disposal of such
hazardous materials that have occurred or are presently occurring off such
properties as a result of any construction on or operation and use of such
properties, except where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure to comply with
the terms and conditions of such permits, licenses or approvals or unlawful
presence of hazardous materials or occurrence would not, singly or in the
aggregate, result in a material adverse change in the general affairs, business
prospects, management, financial position, shareholders' equity or results of
operations of the Company and its Subsidiaries taken as a whole;
(u) the mortgages and deeds of trust encumbering the properties and
assets described in the Prospectus (i) are not convertible and neither the
Company nor any of its Subsidiaries holds a participating interest therein, and
(ii) are not cross-
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defaulted or cross-collateralized to any property not owned by the Company or
any of its Subsidiaries;
(v) subsequent to the respective dates as of which information is
given in the Prospectus, (i) the Company has not purchased any of its
outstanding shares of beneficial interest (other than repurchases of fractional
shares), nor declared, paid or otherwise made any dividend or distribution of
any kind on its shares of beneficial interest other than regular periodic
dividends on its shares of beneficial interest (preferred or common); and (ii)
there has not been any material change in the shares of beneficial interest,
short-term debt or long-term debt of the Company, except in either case as
described in or contemplated by the Prospectus; and
(w) the Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably expected to,
cause or result in stabilization or manipulation of the price of the Securities,
and the Company has not distributed and has agreed not to distribute any
prospectus or other offering material in connection with the offering and sale
of the Securities other than the Prospectus, any preliminary prospectus filed
with the Commission or other material permitted by the Securities Act.
5. The Company covenants and agrees with the Underwriters as
follows:
(a) to file the Prospectus in a form approved by the Underwriters
pursuant to Rule 424 under the Securities Act not later than the Commission's
close of business on the second Business Day following the date of determination
of the offering price of the Securities;
(b) to deliver to the Underwriters and counsel for the Underwriters,
at the expense of the Company, a signed copy of the Registration Statement (as
originally filed) and each amendment thereto, in each case including exhibits
and documents incorporated by reference therein and, during the period mentioned
in paragraph (e) below, to the Underwriters as many copies of the Prospectus
(including all amendments and supplements thereto) and documents incorporated by
reference therein as the Underwriters may reasonably request;
(c) from the date hereof and prior to the Closing Date, to furnish to
the Underwriters a copy of any proposed amendment or supplement to the
Registration Statement or the Prospectus, for review by the Underwriters, and
not to file any
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such proposed amendment or supplement to which the Underwriters reasonably
objects;
(d) to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as
the delivery of a prospectus is required in connection with the offering or sale
of the Securities, and during such same period, to advise the Underwriters
promptly, and to confirm such advice in writing, (i) when any amendment to the
Registration Statement shall have become effective, (ii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for any additional information, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation or threatening of any proceeding for
that purpose, and (iv) of the receipt by the Company of any notification with
respect to any suspension of the qualification of the Securities for offer and
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose; and to use its best efforts to prevent the issuance of any such
stop order or notification and, if issued, to obtain as soon as possible the
withdrawal thereof;
(e) if, during such period after the first date of the public offering
of the Securities as in the reasonable opinion of counsel for the Underwriters a
prospectus relating to the Securities is required by law to be delivered in
connection with sales by an Underwriters or dealer, any event shall occur as a
result of which it is necessary to amend or supplement the Prospectus in order
to make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus to comply with law, and such amendment or
supplement, reasonably satisfactory in all respects to the Underwriters,
forthwith to prepare and furnish, at the expense of the Company, to the
Underwriters and to the dealers (whose names and addresses the Underwriters will
furnish to the Company) to which Securities may have been sold by you and to any
other dealers upon request, such amendments or supplements to the Prospectus as
may be necessary so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances existing at the time
that the Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus will comply with law;
(f) to endeavor to qualify the Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Underwriters shall
reasonably request and to continue such qualification in effect so long as
reasonably required for distribution of the Securities and to pay all fees and
expenses (including fees and
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disbursements of counsel to the Underwriters) reasonably incurred in connection
with such qualification and in connection with the determination of the
eligibility of the Securities for investment under the laws of such
jurisdictions as the Underwriters may designate; provided that the Company shall
not be required to file a general consent to service of process in any
jurisdiction or to qualify to do business in any jurisdiction where it is not so
qualified;
(g) to make generally available to its security holders and to the
Underwriters as soon as practicable an earnings statement covering a period of
at least twelve months beginning with the first fiscal quarter of the Company
occurring after the effective date of the Registration Statement, which shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 of
the Commission promulgated thereunder;
(h) so long as the Securities are outstanding, to furnish to the
Underwriters copies of all reports or other communications (financial or other)
furnished to holders of Securities, and copies of any reports and financial
statements furnished to or filed with the Commission or any national securities
exchange;
(i) during the period beginning on the date hereof and continuing to
and including the Business Day following the Closing Date, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of, or guaranteed
by, the Company which are substantially similar to the Securities without the
Underwriters' prior written consent;
(j) to use the net proceeds of the offering of the Securities in the
manner specified in the Prospectus under "Use of Proceeds;"
(k) as long as any Securities are outstanding, not to be or become an
open-end investment trust, unit investment trust, closed-end investment company
or face-amount certificate company that is or is required to be registered under
the Investment Company Act; and
(l) to pay all costs and expenses incident to the performance of its
obligations hereunder, including without limiting the generality of the
foregoing, all costs and expenses (i) incident to the preparation, issuance,
execution, authentication and delivery of the Securities, including any expenses
of the Trustee, (ii) incident to the preparation, printing and filing under the
Securities Act of the Registration Statement and the Prospectus (including in
each case all exhibits, amendments and supplements thereto), (iii) incurred in
connection with the registration or qualifica-
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tion and determination of eligibility for investment of the Securities under the
laws of such jurisdictions as the Underwriters may designate (including
reasonable fees of counsel for the Underwriters and their disbursements), (iv)
related to any filing with National Association of Securities Dealers, Inc. in
respect of the Securities, (v) in connection with the printing (including word
processing and duplication costs) and delivery of this Agreement, the Indenture,
the Preliminary and Supplemental Blue Sky Memoranda and any Legal Investment
Survey and the furnishing to the Underwriters and dealers of copies of the
Registration Statement and the Prospectus, including mailing and shipping, as
herein provided and (vi) payable to rating agencies in connection with the
rating of the Securities.
6. The obligations of the Underwriters hereunder shall be subject to
the following conditions:
(a) the representations and warranties of the Company contained herein
are true and correct on the date hereof and as of the Closing Date as if made on
and as of the date hereof and of the Closing Date and the Company shall have
complied with all agreements and all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date;
(b) the Prospectus shall have been filed with the Commission pursuant
to Rule 424 within the applicable time period prescribed for such filing by the
rules and regulations under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement shall be in effect, and no
proceedings for such purpose shall be pending before or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the reasonable satisfaction of the
Underwriters;
(c) subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any downgrading, nor
shall any notice have been given of (i) any intended or potential downgrading or
(ii) any review or possible change that does not indicate an improvement, in the
rating accorded any securities of or guaranteed by the Company by any
"nationally recognized statistical rating organization", as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is given in the
Prospectus there shall not have been any material change in the shares of
beneficial interest, short-term debt or long-term debt of the Company or any
material adverse change or any development involving a prospective material
adverse change, in or
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affecting the general affairs, business prospects, management, financial
position, shareholders' equity or results of operations of the Company and its
Subsidiaries, taken as a whole, otherwise than as set forth or contemplated in
the Prospectus, the effect of which in the judgment of the Underwriters makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Securities on the terms and in the manner contemplated in the Prospectus;
(e) the Underwriters shall have received on and as of the Closing Date
a certificate of two officers of the Company, at least one of whom is a
Chairman, Chief Executive Officer, President, Managing Director or Vice
President of the Company satisfactory to the Underwriters, to the effect set
forth in subsections (a) through (c) of this Section and to the further effect
that there has not occurred any material adverse change, or any development
involving a prospective material adverse change, in or affecting the general
affairs, business prospects, management, financial position, shareholders'
equity or results of operations of the Company and its Subsidiaries taken as a
whole from that set forth or contemplated in the Registration Statement;
(f) Mayer, Brown, Xxxx & Maw, counsel for the Company, shall have
furnished to the Underwriters their written opinion, dated the Closing Date, in
form and substance satisfactory to the Underwriters, to the effect that:
(i) the Company has been duly organized and is validly existing as a
real estate investment trust in good standing under the laws of the
State of Maryland, with power and authority (trust or other) to own
its properties and conduct its business as described in the Prospectus
as then amended or supplemented;
(ii) the Company has been duly qualified for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification, other than where the
failure to be so qualified or in good standing would not have a
material adverse effect on the Company and its Subsidiaries taken as a
whole;
(iii) [Reserved]
(iv) other than as set forth or contemplated in the Prospectus, to
such counsel's knowledge, there are no legal or governmental
proceedings pending or threatened to which the Company or any of its
Subsidiaries
14
is or may be a party or to which any property of the Company or its
Subsidiaries is or may be the subject which, if determined adversely
to the Company or such Subsidiaries, could individually or in the
aggregate reasonably be expected to have a material adverse effect on
the general affairs, business prospects, management, consolidated
financial position, shareholders' equity or results of operations of
the Company and its Subsidiaries taken as a whole; to such counsel's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others; and such counsel
does not know of any amendment to the Registration Statement required
to be filed or of any contracts or other documents of a character
required to be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the Prospectus or
required to be described in the Registration Statement or the
Prospectus which are not filed or incorporated by reference or
described as required;
(v) this Agreement has been duly authorized, executed and delivered
by the Company and is a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except
to the extent that enforcement thereof may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium and similar laws
now or hereafter in effect relating to creditors' rights generally and
(ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity) and
except as rights to indemnity and contribution hereunder may be
limited by applicable law;
(vi) the Securities have been duly authorized, executed and delivered
by the Company and, when duly authenticated in accordance with the
terms of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement, will
constitute valid and binding obligations of the Company entitled to
the benefits provided by the Indenture and enforceable against the
Company in accordance with their terms, except to the extent that
enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium and similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of
equity (regardless of whether enforceability is considered in a
proceeding at law or in equity);
15
(vi) the Indenture has been duly authorized, executed and delivered by
the Company and constitutes a valid and binding agreement of the
Company enforceable against the Company in accordance with its terms,
except to the extent enforcement thereof may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium and similar laws
now or hereafter in effect relating to creditors' rights generally and
(ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity); and
the Indenture has been duly qualified under the Trust Indenture Act;
(vii) the Indenture and the Securities conform in all material
respects to the descriptions thereof in the Registration Statement and
the Prospectus;
(ix) the Company's authorized, issued and outstanding shares of
beneficial interest is set forth or incorporated by reference in the
Prospectus; and all of the issued shares of beneficial interest have
been duly and validly authorized and issued, are fully paid and
non-assessable;
(x) neither the Company nor any of its Subsidiaries is, nor with the
giving of notice or lapse of time or both would be, in violation of or
in default under, (i) its Amended and Restated Declaration of Trust,
By-Laws, partnership agreement or other governing instruments or (ii)
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Company or
any of its Subsidiaries is a party or by which it or any of them or
any of their respective properties is bound, except for violations and
defaults (other than violations or defaults with respect to the
Amended and Restated Declaration of Trust and Bylaws of the Company)
which individually and in the aggregate are not material to the
Company and its Subsidiaries taken as a whole or to the holders of the
Securities; the issue and sale of the Securities and the performance
by the Company of its obligations under the Securities, the Indenture
and this Agreement and the consummation of the transactions herein and
therein contemplated will not (i) conflict with or result in a breach
of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument known to such counsel to which the
Company or any of its Subsidiaries is a party or by which the Company
or
16
any of its Subsidiaries is bound or to which any of the property or
assets of the Company or any of its Subsidiaries is subject, (ii) nor
will any such action result in any violation of the provisions of the
Restated Declaration of Trust, or the By-Laws of the Company or any
applicable law or statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company, its Subsidiaries or any of their respective properties, the
violation of which would have a material adverse effect on the
Company and its Subsidiaries taken as a whole or on the consummation
of the transactions contemplated by this Agreement or the Indenture or
on the validity and enforceability of the Securities and the
Indenture;
(xi) no consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is
required for the issue and sale of the Securities or the consummation
of the other transactions contemplated by this Agreement or the
Indenture, except such consents, approvals, authorizations,
registrations or qualifications as have been obtained under the
Securities Act and the Trust Indenture Act and as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters or
consents, the failure of which to obtain would not have a material
adverse effect on the Company and its Subsidiaries taken as a whole or
on the consummation of the transactions contemplated by this Agreement
or the Indenture or on the validity and enforceability of the
Securities and the Indenture;
(xi) the statements (A) contained in the Basic Prospectus under
"Description of Debt Securities" and in the prospectus supplement
specifically relating to the Securities under "Description of Notes,"
(B) incorporated by reference in the Prospectus from Item 3 of Part 1
of the Company's Annual Report on Form 10-K for the year ended
December 31, 2000, (C) contained in the Registration Statement in Item
15, and (D) contained in the Company's Form 8-K filed November 1, 2001
under "Federal Income Tax Considerations," insofar as such statements
constitute a summary of the legal matters, documents or proceedings
referred to therein, are true and correct in all material respects;
(xi) the Company qualified to be taxed as a real estate investment
trust pursuant to Sections 856 through 860 of the Internal Revenue
17
Code, as amended, for the fiscal year ended December 31, 1996 through
the period ended October 29, 2001 and Archstone - Xxxxx Trust
qualified to be taxed as a real estate investment trust pursuant to
Sections 856 through 860 of the Internal Revenue Code, as amended, for
the fiscal year ended December 31, 2001; and the Company is
not an open-end investment company, unit investment trust, closed-end
investment company or face-amount certificate company that is or is
required to be registered under the Investment Company Act;
(xi) the investments of the Company described in the Prospectus are
permitted investments under the Amended and Restated Declaration of
Trust of the Company;
(xv) the Registration Statement is effective under the Securities Act
and, to the best of such counsel's knowledge and information, no stop
order suspending the effectiveness of the Registration Statement has
been issued under the Securities Act or proceeding therefor initiated
or threatened by the Commission; and
(xv) such counsel (A) is of the opinion that each document
incorporated by reference in the Registration Statement and the
Prospectus (except for the financial statements, supporting schedules
and other financial data included therein or omitted therefrom and
except for the Form T-1 as to which such counsel need express no
opinion) when filed with the Commission complied as to form in all
material respects with the Exchange Act (B) believes that (except for
the financial statements, supporting schedules and other financial
data included therein or omitted therefrom and except for the Form T-1
as to which such counsel need express no belief) each part of the
Registration Statement (including the documents incorporated by
reference therein) filed with the Commission pursuant to the
Securities Act relating to the Securities, when such part became
effective, did not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (C) is of the
opinion that the Registration Statement and the Prospectus and any
amendments and supplements thereto (except for the financial
statements, supporting schedules and other financial data included
therein or omitted therefrom and except for the Form T-1 as to which
such counsel need express no opinion) comply as to form in all
material respects with the requirements of the
18
Securities Act and the Trust Indenture Act and (D) believes that
(except for the financial statements, supporting schedules and other
financial data included therein or omitted therefrom and except for
the Form T-1 as to which such counsel need express no belief) the
Registration Statement and the Prospectus, as of their respective
dates and on the date of this Agreement, did not contain any untrue
state ment 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 case of the Prospectus, in the light of the
circumstances under which they were made, not misleading, and that the
Prospectus as amended or supplemented, if applicable, on the Closing
Date does not contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
In rendering such opinions, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States and
the States of Illinois, Maryland and New York, to the extent such counsel deems
proper and to the extent specified in such opinion, if at all, upon an opinion
or opinions (in form and substance reasonably satisfactory to Underwriters'
counsel) of other counsel reasonably acceptable to the Underwriters' counsel,
familiar with the applicable laws; (B) as to the opinion required by clause (B)
of paragraph (xvi), to the extent such counsel deems proper and to the extent
specified in such opinion, upon an opinion (in form and substance reasonably
satisfactory to Underwriters' counsel) of, Xxxxxxxx Xxxxxx, Senior Vice
President and General Counsel of the Company; and (C) as to matters of fact, to
the extent such counsel deems proper, on certificates of responsible officers of
the Company and certificates or other written statements of officials of
jurisdictions having custody of documents respecting the corporate existence or
good standing of the Company. The opinion of such counsel for the Company shall
state that the opinion of any such other counsel or such certificates is in form
satisfactory to such counsel and, in such counsel's opinion, the Underwriters
and they are justified in relying thereon. With respect to the matters to be
covered in subparagraph (xvi) above counsel may state their opinion and belief
is based upon their participation in the preparation of the Registration
Statement and the Prospectus and any amendment or supplement thereto but is
without independent check or verification except as specified. In rendering the
opinions contained in Company's Current Report on Form 8-K filed on November 1,
2000 (xii) (insofar as said opinion refers to information in the 8-K under
"Federal Income Tax Considerations") and (xiii), such opinions may be based upon
(a) the Internal Revenue Code, as amended, and the rules and regulations
promulgated thereunder, (b) Maryland law existing and applica-
19
ble to the Company, (c) facts and other matters set forth in the Prospectus, (d)
the provisions of the Amended and Restated Declaration of Trust of the Company,
and (e) certain statements and representations made by the Company to Mayer,
Brown, Xxxx & Maw provided that such statements and representations are also set
forth in a certificate to the Underwriters.
(g) Xxxxxxxx Xxxxxx, Senior Vice President and General Counsel of the
Company, shall have furnished to the Underwriters her written opinion, dated the
Closing Date, in form and substance satisfactory to the Underwriters, to the
effect that: other than as set forth or contemplated in the Prospectus, there
are no legal or governmental proceedings pending or, to the best of his
knowledge, threatened to which the Company or any of its Subsidiaries is or may
be a party or to which any property of the Company or its Subsidiaries is or may
be the subject which, if determined adversely to the Company or such
Subsidiaries, could individually or in the aggregate reasonably be expected to
have a material adverse effect on the general affairs, business prospects,
management, financial position, shareholders' equity or results of operations of
the Company and its Subsidiaries taken as a whole; to the best of her knowledge,
no such proceedings are threatened or contemplated by governmental authorities
or threatened by others; he does not know of any amendment to the Registration
Statement required to be filed; and there are no contracts or other documents of
a character required to be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the Prospectus or required to be
described in the Registration Statement or the Prospectus which are not filed or
incorporated by reference or described as required;
(h) on the date of execution of this Agreement and also on the Closing
Date, KPMG LLP shall have furnished to you letters, dated such respective dates
of delivery, in form and substance reasonably satisfactory to the Underwriters,
containing statements and information of the type customarily included in
accountants "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statement and the Prospectus;
(i) on the date of execution of this Agreement and also on the Closing
Date, Xxxxxx Xxxxxxxx LLP shall have furnished to you letters, dated such
respective dates of delivery, in form and substance reasonably satisfactory to
the Underwriters, containing statements and information of the type customarily
included in accountants "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus;
20
(j) the Underwriters shall have received on and as of the Closing Date
an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to the
Underwriters, with respect to the validity of the Indenture and the Securities,
the Registration Statement, the Prospectus and other related matters as the
Underwriters may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them to pass
upon such matters; and
(k) on or prior to the Closing Date, the Company shall have furnished
to the Underwriters such further certificates and documents as the Underwriters
shall reasonably request.
7. The Company agrees to indemnify and hold harmless the Underwriters
and each person, if any, who controls the Underwriters within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act, from
and against any and all losses, claims, damages and liabilities (including
without limitation the legal fees and other expenses incurred in connection with
any suit, action or proceeding or any claim asserted) arising out of or caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or the Prospectus (as amended or supplemented if
the Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or arising out of or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the case of the Prospectus or any
preliminary prospectus, in the light of the circumstances under which they were
made, not misleading, except insofar as such losses, claims, damages or
liabilities arising out of or are caused by any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with information relating to the Underwriters furnished to the Company in
writing by the Underwriters expressly for use therein; provided, that the
foregoing indemnity with respect to any preliminary prospectus shall not inure
to the benefit of the Underwriters (or to the benefit of the person controlling
the Underwriters) from whom the person asserting any such losses, claims,
damages or liabilities purchased Securities if such untrue statement or omission
or alleged untrue statement or omission made in such preliminary prospectus is
eliminated or remedied in the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) and, if
required by law, a copy of the Prospectus (as so amended or supplemented) shall
not have been furnished to such person at or prior to the written confirmation
of the sale of such Securities to such person.
The Underwriters agree, severally and not jointly, to indemnify and
hold harmless the Company, its trustees, its officers who sign the Registration
State-
21
ment and each person who controls the Company within the meaning of Section 15
of the Securities Act and Section 20 of the Exchange Act, to the same extent as
the foregoing indemnity from the Company to the Underwriters, but only with
reference to information relating to the Underwriters furnished to the Company
in writing by the Underwriters expressly for use in the Registration Statement,
the Prospectus, any amendment or supplement thereto, or any preliminary
prospectus. For purposes of this Section 7 and Section 4(a), the only written
information furnished by the Underwriters to the Company expressly for use in
the Registration Statement and the Prospectus is (a) the information in the last
paragraph on the cover page of the prospectus supplement specifically relating
to the Securities, and (b) under the caption "Underwriting" in the prospectus
supplement specifically relating to the Securities, the information in (i) the
fourth paragraph, (ii) the third sentence in the sixth paragraph and (iii) the
eighth paragraph.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Underwriters
and such control persons of the Underwriters shall be designated in writing by
Banc of America Securities LLC ("BOA") and any such separate firm for the
Company, its trustees, its officers who sign the Registration Statement and such
control persons of the Company or authorized representatives
22
shall be designated in writing by the Company. The Indemnifying Person shall not
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Person agrees to indemnify any Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested an Indemnifying Person to reimburse the Indemnified
Person for fees and expenses of counsel as contemplated by the third sentence of
this paragraph, the Indemnifying Person agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such Indemnifying
Person of the aforesaid request and (ii) such Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to the
date of such settlement; provided that if it is ultimately determined that an
Indemnified Person was not entitled to indemnification hereunder, such person
shall be responsible for repaying or reimbursing such amounts to the
Indemnifying Person. No Indemnifying Person shall, without the prior written
consent of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement includes an unconditional release of
such Indemnified Person from all liability on claims that are the subject matter
of such proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an Indemnified Person in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and the Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other shall be deemed
to be in the same respective proportions as the net proceeds from the offering
of such Securities (before deducting expenses) received by the Company and the
total underwriting discounts and the commissions received by the Underwriters
bear to the aggregate public offering price
23
of the Securities. The relative fault of the Company on the one hand and the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall the
Underwriters be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
the Underwriters have otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligation of the Underwriters
to contribute pursuant to this Section 7 is several in proportion to their
respective underwriting commitment and is not joint.
The indemnity and contribution agreements contained in this Section 7
are in addition to any liability which the Indemnifying Persons may otherwise
have to the Indemnified Persons referred to above.
The indemnity and contribution agreements contained in this Section 7
and the representations, warranties, and covenants of the Company set forth in
this Agreement shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of the Underwriters or any person controlling the Underwriters or by or
on behalf of the Company, its officers or directors or any other person
controlling the Company and (iii) acceptance of and payment for any of the
Securities.
24
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of BOA, by notice given to the Company, if
after the execution and delivery of this Agreement and prior to the Closing Date
(i) trading generally shall have been suspended or materially limited on or by,
as the case may be, the New York Stock Exchange, (ii) trading of any securities
of or guaranteed by the Company shall have been suspended or materially limited
on any exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities or (iv) there shall have occurred any
outbreak or escalation of hostilities involving the United States or any change
in financial markets in the United States or any calamity or crisis or any
change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of BOA, material and
adverse and which, in the judgment of BOA makes it impracticable or inadvisable
to market the Securities on the terms and in the manner contemplated in the
Prospectus.
9. If this Agreement shall be terminated by the Underwriters because
of any failure or refusal on the part of the Company to comply with the terms or
to fulfill any of the conditions of this Agreement, or if for any reason the
Company shall be unable to perform its obligations under this Agreement or any
condition of the Underwriters' obligations cannot be fulfilled, the Company
agrees to reimburse the Underwriters, for all out-of-pocket expenses (including
the fees and expenses of its counsel) reasonably incurred by the Underwriters in
connection with this Agreement or the offering of Securities contemplated
hereunder and the Company shall then be under no further liability to the
Underwriters except as provided in Sections 5(l) and 7 of this Agreement.
10. This Agreement shall inure to the benefit of and be binding upon
the Company, the Underwriters, any controlling persons referred to herein and
their respective successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. No purchaser of Securities
from the Underwriters shall be deemed to be a successor by reason merely of such
purchase.
11. Under the terms of the Company's Restated Declaration of Trust,
all persons dealing with the Company shall look solely to the Company property
for satisfaction of claims of any nature, and no trustee, officer, agent or
shareholder of
25
the Company shall be held to any person liable in tort, contract or otherwise as
the result of the execution and delivery of this Agreement by the Company.
12. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be
given to Banc of America Securities LLC, Banc of America Corporate Center, 000
Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000, (facsimile number (000) 000-0000,
Attention: Transaction Management). Notices to the Company shall be given to it
at 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000 (facsimile
number: (000) 000-0000; Attention: Xxxxxxxx Xxxxxx, Senior Vice President and
General Counsel).
26
13. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to the conflicts
of laws provisions thereof.
Very truly yours,
ARCHSTONE - XXXXX OPERATING TRUST
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Chief Financial Officer
Accepted: February 12, 0000
XXXX XX XXXXXXX SECURITIES LLC
Acting on behalf of themselves and as the
Representative of the other Underwriters
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Principal
SCHEDULE I
Underwriters: Banc of America Securities LLC
X.X. Xxxxxx Securities Inc.
Xxxxxxx Xxxxx Barney Inc.
Banc One Capital Markets, Inc.
Commerzbank Capital Markets Corp.
Credit Suisse First Boston Corporation
First Union Securities Inc.
Xxxxx Fargo Brokerage Services, LLC
Underwriting Agreement
dated: February 12, 2002
Registration Statement
Number: 333-68591
Title of Securities: 6.50% Notes due 2012 (the "Notes")
Aggregate Principal
Amount: $200,000,000 principal amount
Purchase Price: 99.285% of the principal amount, plus accrued
interest, if any, from February 15, 2002 to the
Closing Date
Price to Public: 100% of the principal amount, plus accrued
interest, if any, from February 15, 2002 to the
Closing Date
Indenture: Indenture dated as of February 1, 1994 between the
Company and Xxxxxx Guaranty Trust Company of New
York, as trustee, as supplemented by the First
Supplemental Indenture dated as of February 2,
1994 between the Company and State Street Bank
and Trust Company, as successor trustee (the
"Trustee")
28
Maturity: February 15, 2012
Interest Rate: 6.50%
Interest Payment Dates: February 15 and August 15, commencing August 15,
2002
Optional Redemption
Provisions: The Notes are redeemable at any time at the option
of the Company, in whole or in part, at a
redemption price equal to the sum of (i) the
principal amount of the Notes being redeemed plus
accrued interest thereon to the redemption date
and (ii) the Make-Whole Amount (as defined in the
Prospectus Supplement relating to the Notes dated
February 12, 2002, if any (the "Redemption
Price").
Sinking Fund Provisions: None
Closing Date: The Closing will be held at Time of Delivery:
10:00 a.m. (E.S.T.) on February 15, 2002, with the
Notes being delivered through the book-entry
facilities of The Depository Trust Company
("DTC") and made available for checking by DTC and
the Trustee at least 24 hours prior to the Closing
Date
Closing Location: Offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP, Four Times Square, Xxx Xxxx, XX 00000
29
SCHEDULE II
SUBSIDIARIES
------------
[to be updated]
State of
Incorporation or Percentage
Subsidiary Name Organization Owned/1/
--------------- ---------------- -----------
Archstone Financial Services Incorporated Delaware 100%
Archstone Communities Incorporated Delaware 100%
Las Xxxxxx Development Company Texas 100%
PTR Holdings (Texas) Incorporated Texas 100%
PTR Multifamily Holdings Incorporated Delaware 100%
PTR-California Holdings (1) Incorporated Maryland 100%
PTR-California Holdings (2) Incorporated Maryland 100%
PTR-California Holdings (3) Incorporated Delaware 100%
PTR-New Mexico (1) Incorporated Delaware 100%
Spectrum Apartment Locators, Inc. Texas 100%
SCP Utah Holdings 1 Incorporated Utah 100%
SCP Utah Holdings 2 Incorporated Utah 100%
SCP Utah Holdings 4 Incorporated Utah 100%
SCP Utah Holdings 5 Incorporated Utah 100%
SCP Nevada Holdings 1 Incorporated Nevada 100%
PTR-Colorado (1), LLC Colorado 80%
Security Capital Atlantic Multifamily Inc. Delaware 100%
SCA Florida Holdings (1) Incorporated Florida 100%
------------
Represents ownership of all outstanding equity securities, unless otherwise
noted.
30
Atlantic-Alabama (3) Incorporated Delaware 100%
Atlantic-Alabama (4) Incorporated Delaware 100%
Atlantic Alabama Multifamily Trust Alabama 100%
Atlantic-Alabama (5) Incorporated Maryland 100%
Atlantic-Alabama (6) Incorporated Maryland 100%
SCA-Alabama Multifamily Trust Alabama 100%
SCA-South Carolina (1) Incorporated Maryland 100%
SCA-North Carolina (1) Incorporated Maryland 100%
SCA-North Carolina (2) Incorporated Maryland 100%
SCA-Indiana Limited Partnership Delaware 100%
SCA-Tennessee (1) Incorporated Maryland 100%
SCA-Tennessee (2) Incorporated Maryland 100%
SCA-Tennessee Limited Partnership Delaware 100%
SCA-Tennessee (3) Incorporated Maryland 100%
SCA-Tennessee (4) Incorporated Maryland 100%
Atlantic-Tennessee Limited Partnership Delaware 100%
SCA Florida Holdings (2) Incorporated Delaware 100%
SCA-1 Incorporated Delaware 100%
Atlantic Multifamily Limited Partnership Delaware 85%
SCA North Carolina Limited Partnership Delaware 100%
31
SUBSIDIARIES
------------
ARCHSTONE-XXXXX OPERATING TRUST
-------------------------------
State of
Incorporation or Percentage
Subsidiary Name Organization Owned
--------------- ---------------- ----------
Archstone-Xxxxx Communities LLC Delaware 100%
PTR-California Holdings (1) LLC Delaware 100%
PTR-California Holdings (2) LLC Delaware 100%
PTR-California Holdings (3) LLC Delaware 100%
SCP Utah Holdings 1 LLC Delaware 100%
SCP Utah Holdings 2 LLC Delaware 100%
ASN-SCP Utah Holdings 4 LLC Delaware 100%
ASN-SCP Utah Holdings 5 LLC Delaware 100%
PTR-Colorado (1), LLC Colorado 80%
Security Capital Atlantic Multifamily LLC Delaware 100%
SCA-North Carolina (1) LLC Delaware 100%
SCA-North Carolina (2) LLC Delaware 100%
SCA-Tennessee (3) LLC Delaware 100%
SCA-Tennessee (4) LLC Delaware 100%
Atlantic-Tennessee Limited Partnership Delaware 100%
SCA Florida Holdings (2) LLC Delaware 100%
SCA-I LLC Delaware 100%
Atlantic Multifamily Limited Delaware 88.54%
Partnership-I
SCA North Carolina Limited Partnership Delaware 100%
ASN Washington Holdings (1) LLC Delaware 100%
ASN RH Member LLC Delaware 100%
ASN San Diego LLC Delaware 100%
ASN Studio City LLC Delaware 100%
ASN Massachusetts Holdings (1) LLC Delaware 100%
ASN Massachusetts Holdings (2) LLC Delaware 100%
ASN Massachusetts Holdings (3) LLC Delaware 100%
ASN Massachusetts Holdings (4) LLC Delaware 100%
ASN Massachusetts Holdings (5) LLC Delaware 100%
ASN Minnesota Holdings (1) LLC Delaware 78.17%
ASN Multifamily Limited Partnership Delaware 100%
Turtle Run at Coral Springs, L.L.C. Delaware 25%
Archstone Communities
Limited Partnership Delaware 78.17%
Archstone Communities
Limited Partnership II Delaware 78%
ASN Dakota Ridge L.L.C. Delaware 78%
ASN Pinnacle L.L.C. Delaware 25%
ASN Wendemere L.L.C. Delaware 88.54%
Archstone Management Services
Incorporated Delaware 100%
Archstone Management Services
(Florida) Incorporated Delaware 100%
Archstone Vinnin Square LLC Delaware 100%
ASN Northgate, LLC Delaware 100%
ASN Stone Ends, LLC Delaware 100%
ASN Xxxxxxxxxx Highlands LLC Delaware 100%
ASN Technologies, Inc. Delaware 100%
ASN Xxxxxxx Commons LLC Delaware 100%
ASN Sussex Commons LLC Delaware 100%
ASN Xxxxxxx Xxxxxxx LLC Delaware 100%
ASN Saybrooke LLC Delaware 100%
ASN Cambridge LLC Delaware 100%
ASN Watertown LLC Delaware 100%
ASN Park Place LLC Delaware 100%
ASN Washington Boulevard LLC Delaware 100%
ASN West End Boulevard LLC Delaware 100%
XXX Holdings LLC Delaware 100%
Archstone Financial Services LLC Delaware 100%
SafeRent LLC Delaware 33.98%
Archstone Foundation Delaware 100%
(non-profit)
Monterey Ranch Residential & Commercial
Community Property Owners Association Texas 50%
(non-profit)
NEC Xxxxx & Xxxx Owners Association Arizona 50%
Courthouse Hill L.L.C. Delaware 100%
Xxxxx Property Holdings
Springfield L.L.C. Virginia 100%
Xxxxx Property Holdings 2000
Commonwealth L.L.C. Delaware 100%
Xxxxx Property Holdings Crystal
Plaza L.L.C. Delaware 100%
Xxxxx Property Holdings Dearborn
Place Manager L.L.C. Delaware 100%
Xxxxx Property Holdings One
East Delaware L.L.C. Delaware 100%
Xxxxx Property Holdings Lincoln
Towers L.L.C. Virginia 100%
Xxxxx Property Holdings Xxxxxxx
Xxxxxx L.P. Delaware 100%
Xxxxx Property Holdings Kenmore L.P. Delaware 100%
First Xxxxxxx Associates L.P. Delaware 100%
Xxxxx Property Holdings Van
Ness L.P. Delaware 100%
Xxxxx Property Holdings Columbia
Road, L.P. Delaware 100%
Xxxxx Property Holdings Xxxxxx'x
Landing L.P. Massachusetts 100%
Xxxxx Property Holdings 0000
Xxxxxxxxxxx Xxxxxx L.L.C. Delaware 100%
Xxxxx Property Holdings
Xxxxxxxx House L.L.C. Delaware 100%
Xxxxx Property Holdings
XxXxxxx Court L.L.C. Delaware 100%
Xxxxx Property Holdings Parc
Vista L.L.C. Delaware 100%
Xxxxx Property Holdings
Stonebridge L.L.C. Delaware 100%
SPH University Center L.L.C. Delaware 100%
Xxxxx Property Holdings
Superior Place L.L.C. Delaware 100%
Xxxxx Property Holdings
Water Park Towers L.L.C. Delaware 100%
Xxxxx Property Holdings
Renaissance Manager L.L.C. Delaware 100%
SPH Renaissance, L.L.C. Delaware 100%
Xxxxx Xxxxxx L.L.C. Delaware 100%
Xxxxx Property Holdings Xxxxx
Xxxxxx L.L.C. Delaware 100%
Xxxxx Property Holdings Xxxxx
Xxxxxx Two L.L.C. Delaware 100%
Xxxxx Property Holdings
Aventura A L.L.C. Delaware 100%
Xxxxx Property Holdings
Aventura B L.L.C. Delaware 100%
Xxxxx Property Holdings
Aventura C L.L.C. Delaware 100%
Xxxxx Property Holdings
Consulate L.L.C. Delaware 100%
Xxxxx Property Holdings
Countryside L.L.C. Delaware 100%
Xxxxx Property Holdings
Crystal Houses L.L.C. Delaware 100%
Xxxxx Property Holdings
Park West L.L.C. Delaware 100%
Xxxxx Property Holdings
Skyline Towers, L.L.C. Delaware 100%
Xxxxx Property Holdings
Somerset L.L.C. Delaware 100%
Xxxxx Property Holdings
South Beach Towers L.L.C. Delaware 100%
Xxxxx Property Holdings
Sunset Pointe Court L.L.C. Delaware 100%
Xxxxx Property Holdings
Sunset Pointe III L.L.C. Delaware 100%
Xxxxx Property Holdings
Sunset Pointe North L.L.C. Delaware 100%
Xxxxx Property Holdings
Sunset Pointe South L.L.C. Delaware 100%
Xxxxx Property Holdings
Sunset Pointe West L.L.C. Delaware 100%
Xxxxx Property Holdings
Terrace L.L.C. Delaware 100%
Xxxxx Property Holdings
Delaware Place, L.P. Delaware 100%
Xxxxx Property Holdings
Plaza 440 Manager L.L.C. Delaware 100%
Xxxxx Property Holdings
Concord L.L.C. Delaware 100%
Xxxxx Property Holdings
Harbour House L.L.C. Delaware 100%
Xxxxx Property Holdings
Illinois Center L.L.C. Delaware 100%
Xxxxx Property Holdings
New River L.L.C. Delaware 100%
Xxxxx Property Holdings
Reston Landing L.L.C. Delaware 100%
Xxxxx Property Holdings
Sagamore Towers, L.L.C. Delaware 100%
Xxxxx Property Holdings
Skyline Mall, L.L.C. Virginia 100%
Xxxxx Property Holdings
Springfield L.L.C. Virginia 100%
SPH Springfield Station L.L.C. Delaware 100%
Xxxxx Property Holdings
Xxxxxx L.L.C. Delaware 100%
Metropolitan Acquisition Finance L.P. Delaware 100%
Xxxxx Employment Services L.P. Delaware 100%
Xxxxxxx X. Xxxxx Insurance Agency, Inc. Washington, DC 100%
Xxxxxxx Gardens I, L.L.C. Virginia 50%
Miami Beach Properties L.L.C. Delaware 100%
Xxxxx Realty Company Maryland 100%
ASN SMCI LLC Delaware 95%
AMERITON Holdings, LLC Delaware 95%
ASN CESI LLC Delaware 95%
