EXHIBIT 1.1
-----------
1,500,000 COMMON SHARES
AMLI RESIDENTIAL PROPERTIES TRUST
(A MARYLAND REAL ESTATE INVESTMENT TRUST)
(PAR VALUE $.01 PER SHARE)
UNDERWRITING AGREEMENT
-----------------------
July 9, 1997
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Amli Residential Properties Trust, a Maryland real estate
investment trust (the "Company"), proposes to sell to Xxxxxx Xxxxxxx & Co.
Incorporated (the "Underwriter") 1,500,000 shares (the "Firm Stock") of the
Company's common shares of beneficial interest, par value $.01 per share
(the "Common Stock"). In addition, the Company proposes to grant to the
Underwriter an option to purchase up to an additional 225,000 shares of
the Common Stock on the terms and for the purposes set forth in Section 2
(the "Option Stock"). The Firm Stock and the Option Stock, if purchased,
are hereinafter collectively called the "Stock." This is to confirm the
agreement concerning the purchase of the Stock from the Company by the
Underwriter.
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY
AND THE OPERATING PARTNERSHIP. Each of the Company and Amli Residential
Properties, L.P., a Delaware limited partnership (the "Operating Partner-
ship"), jointly and severally represents and warrants to the Underwriter as
of the date hereof as follows:
(a) A registration statement on Form S-3, an amendment
and a post-effective amendment thereto, with respect to the preferred
shares of beneficial interest, $.01 par value per share (the "Preferred
Stock"), Common Stock and securities warrants to purchase either of the
foregoing (the "Securities Warrants" and, together with the Preferred Stock
and the Common Stock, the "Shelf Securities") to be issued from time to
time have (i) been prepared by the Company in conformity with the require-
ments of the Securities Act of 1933, as amended (the "Securities Act"),
and the rules and regulations (the "Rules and Regulations") of the Securi-
ties and Exchange Commission (the "Commission") thereunder, (ii) been filed
with the Commission under the Securities Act and (iii) become effective
under the
Securities Act. Copies of such registration statement and the amendments
thereto have been delivered by the Company to you. As used in this Agree-
ment, "Effective Time" means the date and the time as of which such regis-
tration statement, or the most recent post-effective amendment thereto, if
any, was declared effective by the Commission; "Effective Date" means the
date of the Effective Time. 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 first used to confirm sales of the Stock is hereinafter referred to as
the "Basic Prospectus." The Basic Prospectus as supplemented by the pro-
spectus supplement specifically relating to the Stock in the form first
filed pursuant to Rule 424 is hereinafter referred to as the "Prospectus."
Any reference in this Agreement to the Registration Statement, the Basic
Prospectus, any preliminary form of Prospectus (a "Preliminary Prospectus")
previously filed with the Commission pursuant to Rule 424 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") on or before the date of this Agreement, any Preliminary
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, any Preliminary Prospectus or the Prospec-
tus shall be deemed to refer to and include any documents filed under the
Exchange Act after the date of this Agreement, any Preliminary Prospectus
or the Prospectus, as the case may be, which are deemed to be incorporated
by reference therein. The Commission has not issued any order preventing
or suspending the use of any Preliminary Prospectus. As described in the
Prospectus, the Company owns partnership interests in Amli Residential
Properties, L.P., a Delaware limited partnership (the "Operating Partner-
ship"). The term "subsidiaries," when used with respect to the Company,
includes, without limitation, the Operating Partnership, Amli Management
Company (the "Management Company"), Amli Institutional Advisors, Inc.
("AIA") and Amli Residential Construction, Inc. ("Amrescon" and, together
with the Management Company and AIA, the "Service Companies") unless other-
wise noted. Capitalized terms used herein but not otherwise defined shall
have the respective meanings ascribed to such terms in the Prospectus.
As described in the Prospectus, as of the date hereof and as of
any Delivery Date (as hereinafter defined), (i) the Company is and will be
the sole general partner of, and does and will (assuming no conversion of
outstanding units in the Operating Partnership (the "Units") for Common
Stock or exercises of outstanding convertible securities of the Company or
the Operating Partnership prior to each such Delivery Date, and subject to
adjustment to reflect the issuance of the Firm Stock as of the Second
Delivery Date) own a 84.0% partnership interest in, the Operating Partner-
ship, (ii) the Operating Partnership does and will directly, indirectly or
through co-investment joint ventures own each of the 49 multi-family
apartment
2
communities (the "Properties") described in the Prospectus under the
heading "The Communities," (iii) the Operating Partnership is and will be
the sole general partner (except in the case of co-investment joint
ventures which constitute general partnerships) or managing member of each
of the co-investment joint ventures (the "Co-Investment Joint Ventures")
which own the Co-Investment Communities, (iv) the Operating Partnership
does and will own five percent of the common stock and 100% of the pre-
ferred stock of each of the Service Companies and (v) the Operating
Partnership does and will own certain parcels of land described in the
Prospectus upon which it intends to commence development (the "Land
Parcels"). For purposes of this Agreement, the partnership that owns
Phases I and II of the Sope Creek Crossing Community and partnerships or
limited liability companies (other than the Operating Partnership) that own
the Co-Investment Communities at any Delivery Date (and in which the
Operating Partnership will own an interest) are collectively referred to as
the "Property Partnerships." The Company owns the remaining interests in
the partnership that owns Phases I and II of the Sope Creek Crossing
Community. For purposes of this Agreement, the Service Companies and the
Property Partnerships are collectively referred to as the "Subsidiaries."
(b) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the Commission,
as the case may be, conformed in all material respects to the requirements
of the Securities Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
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; and any further documents so filed and
incorporated by reference in the Prospectus or any further amendment or
supplement thereto, when such documents become effective or are filed with
the Commission, as the case may be, will conform in all material respects
to the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and 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; PROVIDED, HOWEVER, that no representation or warranty is
made as to any statements or omissions made in reliance upon and in
conformity with written information furnished to the Company by you
specifically for inclusion therein.
(c) The Registration Statement conforms, and the Pro-
spectus and any further amendments or supplements to the Registration
Statement or the Prospectus will, when they become effective or are filed
with the Commission, as the case may be, conform in all material respects
to the requirements of the Securities Act and the Rules and Regulations 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 applicable
filing date (as to the Prospectus and any amendment or supplement thereto)
contain an untrue statement of a material fact or omit to state
3
a material fact required to be stated therein or necessary to make the
statements therein not misleading; PROVIDED, HOWEVER, that no representa-
tion or warranty is made as to any statements or omissions made in reliance
upon and in conformity with written information furnished to the Company by
you specifically for inclusion therein.
(d) KPMG Peat Marwick LLP, the accounting firm that
certified the financial statements and supporting schedules included in the
Registration Statement, are independent public accountants as required by
the Securities Act and the Rules and Regulations.
(e) The financial statements (including the notes
thereto) included in the Registration Statement and the Prospectus present
fairly the financial position of the respective entity or entities present-
ed therein as at the respective dates indicated and the results of their
operations for the respective periods specified; 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 schedules included in the Registration
Statement present fairly the information required to be stated therein.
The financial information and data included in the Registration Statement
and the 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 Prospectus and the books and
records of the respective entities presented therein. Pro forma financial
information included in the Prospectus has been prepared in accordance with
the applicable requirements of the Securities Act, the Rules and Regula-
tions and 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 entity or entities presented therein
at the respective dates indicated and the results of their operations for
the respective periods specified.
(f) Since the respective dates as of which information
is given in the Prospectus, except as otherwise stated therein, (A) there
has been no material adverse change in the condition, financial or other-
wise, or in the earnings, assets, business affairs or business prospects of
the Properties (taken as a whole) or of the Company, whether or not arising
in the ordinary course of business, (B) there have been no transactions
entered into by the Company, the Operating Partnership or any of the
Subsidiaries, other than those in the ordinary course of business, which
are material with respect to the Properties (taken as a whole) or to the
Company, (C) there has been no casualty loss or condemnation or other
adverse event with respect to any Property that is material with respect to
the Properties (taken as a whole), (D) there has been no dividend or
distribution of any kind declared, paid or made by the Company or the
Service Companies on any class of their capital stock or shares of benefi-
cial interest or by the Operating Partnership or any Property Partnership
with
4
respect to their partnership interests, and (E) there has been no change in
the capital stock or shares of beneficial interest of the Company or the
Service Companies or in the partnership interests of the Operating Partner-
ship or any Property Partnership, or any material increase in the indebted-
ness of the Company, the Operating Partnership or any of the Subsidiaries,
taken as a whole.
(g) 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 full power and authority to own, lease and
operate its properties and 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 Company is duly quali-
fied 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 Properties (taken as a whole) or of the Company.
(h) Each of the Service Companies has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation with corporate
power and authority to own, lease and operate its properties and to conduct
the business in which it is engaged or proposes to engage as described in
the Prospectus. Each of the Service Companies is duly qualified as a
foreign corporation 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 Properties (taken as a whole) or of
the Company. All of the issued and outstanding capital stock of each of
the Service Companies has been duly authorized and at any Delivery Date
will be validly issued, fully paid and nonassessable and will be owned as
described in the Prospectus, in each case free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity.
(i) 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
and 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
5
on the condition, financial or otherwise, or the earnings, assets, business
affairs or business prospects of the Properties (taken as a whole) or of
the Company. The Operating Partnership and the other subsidiaries identi-
fied in the Registration Statement are the only subsidiaries of the Company
required to be identified as such in the Company's Annual Report on Form
10-K pursuant to Item 601 of Regulation S-K.
(j) Each Property Partnership has been duly formed and
is validly existing as a limited or general partnership or limited liabili-
ty company, as the case may be, in good standing (in the case of each
limited partnership or limited liability company) under the laws of the
jurisdiction of its formation with the 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. Each Property
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
would not have a material adverse effect on the condition, financial or
otherwise, or the earnings, assets, business affairs or business prospects
of the Properties (taken as a whole) or of the Company. As of any Delivery
Date, all of the partnership or limited liability company interests of each
Property Partnership will be duly authorized for issuance and validly
issued and fully paid, in each case free and clear of any security inter-
est, mortgage, pledge, lien, encumbrance, claim or equity. Each partner-
ship agreement relating to a Property Partnership is in full force and
effect. As of any Delivery Date, except for the Property Partnerships that
constitute Co-Investment Joint Ventures, the Operating Partnership and the
Company will own all of the partnership interests of each Property Partner-
ship. As of any Delivery Date, the Operating Partnership will be the sole
general partner (except in the case of Co-Investment Joint Ventures that
are general partnerships) or managing member of, and will own at least the
percentage partnership or membership interest as indicated in the Prospec-
tus under the heading "The Communities" in, each of the Co-Investment Joint
Ventures.
(k) The authorized shares of beneficial interest of the
Company are as set forth in the Prospectus under the heading "Description
of Common Shares," and the issued and outstanding shares of beneficial
interest of the Company are as set forth in the Prospectus under the
heading "Capitalization" (except for subsequent issuances, if any, pursuant
to this Agreement or pursuant to employee, trustee or director benefit
plans of the Company, the Operating Partnership and the Service Companies
as described in the Prospectus or the issuance of Units in connection with
the acquisition of property, directly or indirectly, by the Operating
Partnership). The issued and outstanding Common Stock has been duly
authorized and validly issued and is fully paid and, except as described in
the Prospectus, nonassessable; the Stock has been duly authorized for
issuance and sale to the Underwriter pursuant to this Agreement and, when
issued and delivered by
6
the Company pursuant to this Agreement against payment of the consideration
set forth herein, will be validly issued and fully paid and, except as
described in the Prospectus, nonassessable; the Company has duly reserved a
sufficient number of shares of Common Stock for issuance upon exchange of
outstanding Units; the terms of the Common Stock are accurately described
in all material respects in the Prospectus; and the issuance of the Stock
is not subject to preemptive or other similar rights.
(l) Except as disclosed in the Prospectus, or except to
the extent that the inaccuracy of any of the following, either individually
or in the aggregate, would not result in any material adverse change in the
condition, financial or otherwise, or in the earnings, assets, business
affairs or business prospects of the Properties (taken as a whole) or of
the Company (a "Material Adverse Change") or which would not materially
impair the consummation of the transactions contemplated by this Agreement
(together with a Material Adverse Change, a "Material Adverse Effect"):
(A) none of the Company, the Operating Partnership or any Subsidiary is in
violation of its declaration of trust, charter, by-laws, certificate of
limited partnership, partnership agreement or other governing document, as
the case may be, and none of such entities 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 to which such entity is a party or by which such entity may be
bound or affected, or to which any of the property or assets of such entity
is subject; and (B) the execution, delivery and performance of this
Agreement by the Company and the Operating Partnership and the consummation
of the transactions contemplated herein and compliance by each of the
Company and the Operating Partnership with its obligations hereunder have
been duly authorized by all necessary corporate, trust or partnership
action, as the case may be, and will not conflict with or constitute a
breach of, or default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company, the
Operating Partnership or any of the Subsidiaries pursuant to, 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
affected, or to which any of the property or assets of such entity is
subject, nor will such action result in any violation of the declaration of
trust, charter, by-laws, certificate of limited partnership, partnership
agreement or other governing document, as the case may be, of such entity
or any applicable law, administrative regulation or administrative or court
decree.
(m) No labor dispute, material to the Company, with the
employees of the Company, the Operating Partnership or any of the Subsid-
iaries exists or, to the knowledge of the Company, the Operating Partner-
ship or any of the Subsidiaries, is imminent.
7
(n) 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, threat-
ened against or affecting the Company, the Operating Partnership or any
Subsidiary, or of which any of their respective property or assets is the
subject, which is required to be disclosed in the Registration Statement,
other than as disclosed therein, or which, if determined adversely,
individually or in the aggregate, might result in a Material Adverse
Effect; all pending legal or governmental proceedings to which the Company,
the Operating Partnership or any Subsidiary is a party or to which any of
their respective property or assets is subject which are not described in
the Registration Statement, including ordinary routine litigation inciden-
tal to the business, are, considered in the aggregate, not material to the
Company; and there are no contracts, indentures, mortgages, loan agree-
ments, notes, leases or other instruments or documents which are required
to be described or referred to in the Registration Statement or to be filed
as exhibits thereto by the Securities Act or the Rules and Regulations,
other than those described or referred to therein or filed as exhibits
thereto, and the descriptions thereof or references thereto in the Regis-
tration Statement are correct.
(o) The Company, the Operating Partnership and the
Subsidiaries own or have a royalty-free license to use all of the trade-
marks, service marks and trade names (collectively, the "Proprietary
Rights") presently employed by them in connection with the business now
engaged by them or proposed to be engaged by them as described in the
Prospectus, and neither the Company, the Operating Partnership nor the
Subsidiaries have received any notice or are otherwise aware of any
infringement of or conflict with asserted rights of others with respect to
any Proprietary Rights, or of any facts which would render any of the
Proprietary Rights invalid or inadequate to protect the interest of the
Company, the Operating Partnership or any of the Subsidiaries therein, and
which infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, individually or in the
aggregate, would result in any Material Adverse Change.
(p) Commencing with the Company's taxable year ending
December 31, 1994, the Company has been organized in conformity with the
requirements for qualification as a real estate investment trust (a "REIT")
under the Internal Revenue Code of 1986, as amended (the "Code"), and its
proposed method of operation as described in the Prospectus will enable it
to continue to satisfy the requirements for taxation as a REIT under the
Code.
(q) No authorization, approval, consent or order of any
court or governmental authority or agency is necessary in connection with
the offering, issuance or sale of the Stock hereunder, except such as may
be required under the Securities Act or the Rules and Regulations or state
securities laws of any state or other jurisdiction and except for such as
have been obtained.
8
(r) Each of the Company, the Operating Partnership and
the Subsidiaries possesses such certificates, authorizations or permits
issued by the appropriate state, federal or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them or proposed
to be operated by them as described in the Prospectus, and none of such
entities has received any notice of proceedings relating to the revocation
or modification of any such certificate, authorization or permit which,
individually or in the aggregate, if the subject of an unfavorable deci-
sion, ruling or finding, would result in a Material Adverse Change.
(s) Except as disclosed in the Prospectus, or except to
the extent that the inaccuracy of any of the following, either individually
or in the aggregate, would not have a Material Adverse Effect: (A) At any
Delivery Date, the Operating Partnership or the Property Partnerships will
have good and marketable fee simple title (or, with respect to any Proper-
ties located in Texas, good and indefeasible fee simple title, or such
substantially equivalent quality of title as provided by the applicable
title insurance policy) to the land underlying each of the Properties and
the Co-Investment Communities (except for Towne Creek Crossing, which is
subject to a ground lease (the "Towne Creek Ground Lease") dated April 12,
1989) and good and marketable title (or, with respect to Properties located
in Texas, good and indefeasible title) to the improvements thereon (in each
case with title insurance thereon in full force and effect and which is
adequate in accordance with industry standards) and all other assets that
are required for the effective operation of such Properties in the manner
in which they currently are operated subject only to Permitted Exceptions
(as herein defined); (B) at any Delivery Date, the Towne Creek Ground Lease
and all other leases under which the Company, the Operating Partnership or
the Subsidiaries will lease any property as lessee will be in full force
and effect, and neither the Company, the Operating Partnership nor any
Subsidiary will be in default in any material respect of any of the terms
or provisions of any of such leases and no claim has been asserted by
anyone adverse to any such entity's rights as lessee under any of such
leases, or affecting or questioning any such entity's right to the contin-
ued possession or use of the properties under any such leases or asserting
a default under any such leases; (C) all liens, charges or encumbrances on
or affecting any of the Wholly-Owned Communities or the Co-Investment
Communities or the other property and assets of the Company, the Operating
Partnership or any of the Subsidiaries which are required to be disclosed
in the Prospectus are disclosed therein; (D) neither the Company, the
Operating Partnership, any Property Partnership nor, to the knowledge of
the Company, the Operating Partnership or the Subsidiaries, any tenant of
any of the Wholly-Owned Communities or the Co-Investment Communities is in
default under any of the leases pursuant to which the Operating Partnership
or any Property Partnership, as lessor, will lease its Property as of any
Delivery Date, and none of the Company, the Operating Partnership or any of
the Subsidiaries 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; (E) at any Delivery Date, the Operating Partnership or the Property
Partnerships (or the Man-
9
agement Company as agent for the Property Partnerships or the Operating
Partnership) will be the lessor of all tenant leases at each of the Wholly-
Owned Communities and the Co-Investment Communities; (F) each of the
Properties complies with all applicable federal, state and local codes,
laws and regulations (including, without limitation, building and zoning
codes, laws and regulations and laws relating to handicapped access to the
Properties); (G) none of the Company, the Operating Partnership or any of
the Subsidiaries has knowledge of any pending or threatened condemnation
proceedings, zoning change, or other proceeding or action that will in any
manner adversely affect the size of, use of, improvements on, construction
on or access to the Properties; and (H) neither the Company, the Operating
Partnership nor any of the Subsidiaries has received from any governmental
authority notice of any violation of any municipal, state or federal law,
rule or regulation (including relating to environmental matters) concerning
the Wholly-Owned Communities or the Co-Investment Communities or any part
thereof which has not heretofore been cured. As used in this Agreement,
"Permitted Exceptions" means: (i) real estate taxes and assessments not
yet delinquent; (ii) covenants, restrictions, easements and other similar
agreements, provided that the same are not violated by existing improve-
ments or the current use and operation of a Property; (iii) zoning laws,
ordinances and regulations, building codes, rules and other governmental
laws, regulations, rules and orders affecting each Property, provided that
the same are not violated by existing improvements or the current use and
operation of a Property; (iv) any state of facts disclosed by the surveys
relating to the Properties; (v) any minor imperfection of title which does
not affect the current use, operation or enjoyment of a Property and does
not render title to such Property unmarketable or uninsurable and does not
impair the value of such Property; and (iv) mortgage financing as described
in the Prospectus.
(t) (A) As of any Delivery Date, no person or entity
will have an option or right of first refusal (except for buy-sell or
similar provisions, in the case of the Co-Investment Communities, as set
forth in the partnership or limited liability company agreements of the
partnerships or limited liability companies of the partnerships or limited
liability companies that own the Co-Investment Communities) to purchase all
or any part of any Property or any interest therein; and (B) there is in
effect for the Properties and other assets of the Company, the Operating
Partnership and the Subsidiaries insurance coverages (including title
insurance) that are commercially reasonable and adequate for the types of
assets and properties owned, operated or managed by them, and neither the
Company, the Operating Partnership, nor any Subsidiary has received from
any insurance company notice of any material defects or deficiencies
affecting the insurability of any of the Properties or such other assets.
(u) (A) Except as specifically described in the
Prospectus, each of the Company, the Operating Partnership and each of the
Subsidiaries has
10
complied and is in compliance in all material respects with all Environmen-
tal Statutes (as hereinafter defined).
(B) Neither the Company, the Operating
Partnership nor any of the Subsidiaries intends to use the properties or
assets described in the Prospectus or any other real property owned or
occupied by any such party for the purpose of handling, burying, storing,
retaining, refining, transporting, processing, manufacturing, generating,
producing, spilling, seeping, leaking, escaping, leaching, pumping,
pouring, emitting, emptying, discharging, injecting, dumping, transferring
or otherwise disposing of or dealing with Hazardous Materials, 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 Statute.
(C) Except as would not, individually or in
the aggregate, have a material adverse effect on the condition, financial
or otherwise, or the earnings, assets, business affairs or business
prospects of the Company, any Wholly-Owned Community, any Co-Investment
Community or a Land Parcel, neither the Company, the Operating Partnership
nor any of the Subsidiaries knows of any seepage, leak, escape, xxxxx, dis-
charge, injection, release, emission, spill, pumping, pouring, emptying or
dumping of Hazardous Materials into waters on or adjacent to the properties
described in the Prospectus or any other real property owned or occupied by
any such party, or onto lands from which Hazardous Materials might seep,
flow or drain into such waters.
(D) Neither the Company, the Operating
Partnership nor any of the Subsidiaries has received any notice of, or has
any knowledge of, any occurrence or circumstance that, with notice or
passage of time or both, would give rise to a claim under or pursuant to
any federal, state or local environmental statute or regulation or under
common law, pertaining to Hazardous Materials on or originating from any
properties or assets described in the Prospectus or any other real property
owned or occupied by any such party or arising out of the conduct of any
such party, including without limitation pursuant to any Environmental
Statute, which would not individually or in the aggregate have a Material
Adverse Effect on the condition, financial or otherwise, of the Company or
the Properties and the Land Parcels.
11
(E) Neither the properties described in the
Prospectus nor any other land owned by the Company, the Operating
Partnership or any of the Subsidiaries is included or, to the best
knowledge of the Company, the Operating Partnership or the Subsidiaries,
proposed for inclusion on the National Priorities List issued pursuant to
CERCLA (as hereinafter defined) by the United States Environmental
Protection Agency (the "EPA") or on the inventory of other potential
"Problem" sites issued by the EPA and has not otherwise been publicly
identified by the EPA as a potential CERCLA site or included or, to the
best knowledge of the Company, the Operating Partnership or the
Subsidiaries, proposed for inclusion on any list or inventory issued
pursuant to any other Environmental Statute or issued by any other
Governmental Authority (as hereinafter defined).
As used herein, "Hazardous Material" shall
include without limitation any flammable explosives, radioactive materials,
hazardous materials, hazardous wastes, toxic substances or related
materials, asbestos or any hazardous material as defined by any federal,
state or local environmental law, ordinance, rule or regulation, including
without limitation the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, 42 U.S.C. Section 9601 et seq.
("CERCLA"), the Hazardous Materials Transportation Act, as amended, 49
U.S.C. Section 1801 et seq., the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. Section 9601 et seq., the Emergency Planning and
Community Right-to-Know Act of 1986, 42 U.S.C. Section 11001 et seq., the
Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq., the Federal
Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Section 136 et seq.,
the Clean Air Act, 42 U.S.C. Section 7401 et seq., the Clean Water Act
(Federal Water Pollution Control Act), 33 U.S.C. Section 1251 et seq., the
Safe Drinking Water Act, 42 U.S.C. Section 300f to 300j-11, and the
Occupational Safety and Health Act, 29 U.S.C. Section 651 et seq., as any
of the above statutes may be amended from time to time, and in the
regulations adopted and publications promulgated pursuant to each of the
foregoing (individually, an "Environmental Statute") or by any federal,
state or local governmental authority having or claiming jurisdiction over
the properties and assets described in the Prospectus (a "Governmental
Authority").
(v) Neither the Company, the Operating Partnership nor
any of their directors, officers or controlling persons has taken or will
take, directly or indirectly, any action resulting in a violation of
Regulation M under the Exchange Act or designed to cause or result under
the Securities Act or otherwise in, or which
12
has constituted or which reasonably might be expected to constitute, the
stabilization or manipulation of the price of any security of the Company
or facilitation of the sale or resale of the Stock.
(w) This Agreement has been duly executed and delivered
by the Company and the Operating Partnership.
(x) Neither the Company nor the Operating Partnership
is, or at any Delivery Date will be, required to be registered under the
Investment Company Act of 1940, as amended (the "1940 Act").
(y) There are no persons with registration or other
similar rights to have any securities of the Company, the Operating
Partnership or the Subsidiaries registered pursuant to the Registration
Statement.
(z) The Company has complied and will comply with all
of the provisions of Florida H.B. 1771, codified as Section 517.075 of the
Florida statutes, and all regulations promulgated thereunder relating to
issuers doing business with Cuba.
Any certificate signed by any officer of the Company or the Operating
Partnership and delivered to the Underwriter or to counsel for the Under-
writer shall be deemed a representation and warranty by each of the Company
and the Operating Partnership (jointly and severally) to the Underwriter as
to the matters covered thereby.
2. PURCHASE OF THE STOCK BY THE UNDERWRITER. On the basis
of the representations and warranties contained in, and subject to the
terms and conditions of, this Agreement, the Company agrees to sell
1,500,000 shares of the Firm Stock to the Underwriter and the Underwriter
agrees to purchase such shares.
In addition, the Company grants to the Underwriter an option to
purchase up to 225,000 shares of Option Stock. Such option is granted
solely for the purpose of covering over-allotments in the sale of Firm
Stock and is exercisable as provided in Section 4 hereof. The price of
both the Firm Stock and any Option Stock shall be $22.1925 per share.
The Company shall not be obligated to deliver any of the Stock
to be delivered on the First Delivery Date or the Second Delivery Date (as
hereinafter defined), as the case may be, except upon payment for all the
Stock to be purchased on such Delivery Date as provided herein.
13
3. OFFERING OF STOCK BY THE UNDERWRITER. Upon authorization
by the Underwriter of the release of the Firm Stock, the Underwriter
proposes to offer the Firm Stock for sale upon the terms and conditions set
forth in the Prospectus.
4. DELIVERY OF AND PAYMENT FOR THE STOCK. Delivery of and
payment for the Firm Stock shall be made at the office of Xxxxxx Xxxxxxx &
Co. Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 A.M.,
New York City time, on the third full business day following the date of
this Agreement or at such other date or place as shall be determined by
agreement between the Underwriter and the Company. This date and time are
sometimes referred to as the "First Delivery Date." On the First Delivery
Date, the Company shall deliver or cause to be delivered certificates
representing the Firm Stock to the Underwriter for the account of the
Underwriter against payment to or upon the order of the Company of the
purchase price by wire transfer in immediately available funds. Time shall
be of the essence, and delivery at the time and place specified pursuant to
this Agreement is a further condition of the obligation of the Underwriter
hereunder. Upon delivery, the Firm Stock shall be registered in such names
and in such denominations as the Underwriter shall request in writing not
less than two full business days prior to the First Delivery Date. For the
purpose of expediting the checking and packaging of the certificates for
the Firm Stock, the Company shall make the certificates representing the
Firm Stock available for inspection by the Underwriter in New York, New
York, not later than 2:00 P.M., New York City time, on the business day
prior to the First Delivery Date.
At any time on or before the thirtieth day after the date of
this Agreement (or, if such thirtieth day shall be a Saturday, Sunday or
holiday, on the next business day) the option granted in Section 2 may be
exercised by written notice being given to the Company by the Underwriter.
Such notice shall set forth the aggregate number of shares of Option Stock
as to which the option is being exercised, the names in which the shares of
Option Stock are to be registered, the denominations in which the shares of
Option Stock are to be issued and the date and time, as determined by the
Underwriter, when the shares of Option Stock are to be delivered; PROVIDED,
HOWEVER, that this date and time shall not be earlier than the First
Delivery Date nor earlier than the second business day after the date on
which the option shall have been exercised nor later than the fifth
business day after the date on which the option shall have been exercised.
The date and time the shares of Option Stock are delivered are sometimes
referred to as the "Second Delivery Date" and the First Delivery Date and
the Second Delivery Date are sometimes each referred to as a "Delivery
Date."
14
Delivery of and payment for the Option Stock shall be made at
the place specified in the first sentence of the first paragraph of this
Section 4 (or at such other place as shall be determined by agreement
between the Underwriter and the Company) at 10:00 A.M., New York City time,
on the Second Delivery Date. On the Second Delivery Date, the Company
shall deliver or cause to be delivered the certificates representing the
Option Stock to the Underwriter against payment to or upon the order of the
Company of the purchase price by wire transfer in immediately available
funds. Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obliga-
tion of the Underwriter hereunder. Upon delivery, the Option Stock shall
be registered in such names and in such denominations as the Underwriter
shall request in the aforesaid written notice. For the purpose of expedit-
ing the checking and packaging of the certificates for the Option Stock,
the Company shall make the certificates representing the Option Stock
available for inspection by the Underwriter in New York, New York, not
later than 2:00 P.M., New York City time, on the business day prior to the
Second Delivery Date.
5. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees:
(a) To prepare the Prospectus in a form approved
by the Underwriter and to file such Prospectus pursuant to Rule 424(b)
under the Securities Act not later than the Commission's close of business
on the second business day following the execution and delivery of this
Agreement; to make no further amendment or any supplement to the Registra-
tion Statement or to the Prospectus except as permitted herein; to advise
the Underwriter, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has
been filed and to furnish the Underwriter with copies thereof; to advise
the Underwriter, promptly after it receives notice thereof, of the issuance
by the Commission of any stop order or of any order preventing or suspend-
ing the use of any Preliminary Prospectus or the Prospectus, of the
suspension of the qualification of the Stock for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for
additional information; and, in the event of the issuance of any stop order
or of any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending any such qualification, to use
promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to the Underwriter and to
counsel for the Underwriter a signed copy of the Registration Statement as
originally filed with the Commission, and each amendment thereto filed with
the Commission, including all consents and exhibits filed therewith;
15
(c) To deliver promptly to the Underwriter such
number of the following documents as the Underwriter shall reasonably
request: (i) conformed copies of the Registration Statement as originally
filed with the Commission and each amendment thereto (in each case exclud-
ing exhibits other than this Agreement and the computation of per share
earnings) and (ii) each Preliminary Prospectus, the Prospectus and any
amended or supplemented Prospectus; and, if the delivery of a prospectus is
required at any time prior to the expiration of nine months after the
Effective Time in connection with the offering or sale of the Stock and if
at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue state-
ment of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made when such Prospectus is delivered, not mislead-
ing, or, if for any other reason it shall be necessary in the reasonable
opinion of counsel for the Underwriter during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the
Securities Act or the Exchange Act, to notify the Underwriter and, upon its
request, to file such document and to prepare and furnish without charge to
the Underwriter and to any dealer in securities as many copies as the
Underwriter may from time to time reasonably request of an amended Prospec-
tus or a supplement to the Prospectus which will correct such statement or
omission or effect such compliance, and in case the Underwriter is required
to deliver a prospectus in connection with sales of any of the Stock at any
time nine months or more after the Effective Time, upon their request but
at their expense, to prepare and deliver to the Underwriter as many copies
as the Underwriter may reasonably request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Securities Act;
(d) To file promptly with the Commission any
amendment to the Registration Statement or the Prospectus or any supplement
to the Prospectus that may, in the reasonable judgment of the Company or
the Underwriter, be required by the Securities Act or requested by the
Commission;
(e) Prior to filing with the Commission (i) any
amendment to the Registration Statement or supplement to the Prospectus,
any document incorporated by reference in the Prospectus or (ii) any
Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a
copy thereof to the Underwriter and counsel for the Underwriter and obtain
the consent of the Underwriter to the filing, which consent shall not be
unreasonably withheld or delayed;
(f) As soon as practicable after the Effective
Date, but in any event not later than 60 days after the end of its fiscal
quarter in which the first anniversary date of the Effective Date occurs,
to make generally available to the Company's security holders and to
deliver to the Underwriter an earning statement of the Company and its
subsidiaries (which need not be audited) complying with
16
Section 11(a) of the Securities Act and the Rules and Regulations (includ-
ing, at the option of the Company, Rule 158);
(g) Promptly from time to time to take such
action as the Underwriter may reasonably request to qualify the Stock for
offering and sale under the securities laws of such jurisdictions as the
Underwriter may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as long
as may be necessary to complete the distribution of the Stock; except that
in no event shall the Company be obligated in connection therewith to take
any action that would subject it to income taxation in such jurisdiction,
to qualify as a foreign corporation in such jurisdiction, or to execute a
general consent to service of process;
(h) Without the prior written consent of the
Underwriter, it will not, during the period ending 90 days after the date
of the Prospectus, (i) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase or otherwise transfer or
dispose of, directly or indirectly, any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock
or (ii) enter into any swap or other arrangement that transfers to another,
in whole or in part, any of the economic consequences of ownership of the
Common Stock, whether any such transaction described in clause (i) or (ii)
above is to be settled by delivery of Common Stock or such other securi-
ties, in cash or otherwise. The foregoing sentence shall not apply to (A)
the Stock to be sold hereunder, (B) the issuance by the Company of any
shares of Common Stock upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof of which the
Underwriter has been advised in writing, (C) the grant of options to
purchase up to an aggregate of 120,000 shares of Common Stock pursuant to
the Company's, the Operating Partnership's and the Service Companies'
existing employee, trustee or director benefit plans or (D) the issuance of
Units in connection with the acquisition of property, directly or indirect-
ly, by the Operating Partnership, notice of which shall be provided to the
Underwriter promptly following any such issuance;
(i) To file promptly all reports and any defini-
tive 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 Stock;
(j) To use its reasonable best efforts to meet
the requirements to qualify, effective for the fiscal year ending December
31, 1997, as a REIT under the Code;
17
(k) To apply the net proceeds from the sale of
the Stock being sold by the Company as set forth in the Prospectus; and
(l) To take such steps as shall be necessary to
ensure that neither the Company nor any subsidiary shall become an "invest-
ment company" within the meaning of such term under the 1940 Act and the
rules and regulations of the Commission thereunder.
6. EXPENSES. The Company agrees to pay (a) the costs
incident to the authorization, issuance, sale and delivery of the Stock and
any stock transfer taxes, stamp duties and similar taxes payable in that
connection; (b) the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statement and any amendments
and exhibits thereto; (c) the costs of distributing the Registration
Statement as originally filed and each amendment thereto and any post-
effective amendments thereof (including, in each case, exhibits), any
Preliminary Prospectus, the Prospectus and any amendment or supplement to
the Prospectus, all as provided in this Agreement; (d) the costs of
printing, reproducing and distributing this Agreement (and related agree-
ments) and all other agreements, memoranda, correspondence and other
documents printed, distributed or delivered in connection with the offering
of the Stock; (e) the filing fees incident to securing any required review
by the National Association of Securities Dealers, Inc. of the terms of
sale of the Stock; (f) any applicable listing or other fees; (g) the fees
and expenses of qualifying the Stock under the securities laws of the
several jurisdictions as provided in Section 5(g) and of preparing,
printing and distributing a Blue Sky Memorandum (including related fees and
expenses of counsel for the Underwriter); and (h) all other costs and
expenses incident to the performance of the obligations of the Company
under this Agreement; PROVIDED that, except as provided in this Section 6,
Section 8 and Section 10, the Underwriter shall pay its own costs and
expenses, including the costs and expenses of counsel for the Underwriter,
any transfer taxes on the Stock which the Underwriter may sell and the
expenses of advertising any offering of the Stock made by the Underwriter.
7. CONDITIONS OF UNDERWRITER'S OBLIGATIONS. The obligations
of the Underwriter hereunder are subject to the accuracy, when made and on
each Delivery Date, of the representations and warranties of the Company
contained herein, to the performance by the Company of its obligations
hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed
with the Commission in accordance with Section 5(a); no stop order suspend-
ing the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and any request of the Commis-
sion for inclusion of additional
18
information in the Registration Statement or the Prospectus or otherwise
shall have been complied with.
(b) The Underwriter shall not have discovered and
disclosed to the Company on or prior to such Delivery Date that the
Registration Statement or the Prospectus or any amendment or supplement
thereto contains an untrue statement of a fact which, in the opinion of
Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois), counsel for the Underwrit-
er, is material or omits to state a fact which, in the opinion of such
counsel, is material and is required to be stated therein or is necessary
to make the statements therein not misleading.
(c) All corporate proceedings and other legal
matters incident to the authorization, form and validity of this Agreement,
the Stock, the Registration Statement and the Prospectus, and all other
legal matters relating to this Agreement and the transactions contemplated
hereby shall be reasonably satisfactory in all material respects to counsel
for the Underwriter and the Company shall have furnished to such counsel
all documents and information that they may reasonably request to enable
them to pass upon such matters.
(d) Xxxxx, Xxxxx & Xxxxx shall have furnished to
the Underwriter their written opinion, as counsel to the Company, addressed
to the Underwriter and dated such Delivery Date, in form and substance
reasonably satisfactory to the Underwriter, to the effect that:
(A) The Company has been duly orga-
nized and is validly existing as a real estate investment trust
in good standing under the laws of the State of Maryland.
(b) The Company has power and author-
ity to own, lease and operate its properties and 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.
(C) The Company is duly qualified 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 Properties (taken as a whole) or of the
Company (such counsel being entitled to rely in respect of matters of fact
upon certificates of public officials or officers of the Company).
(D) The description of the shares of
beneficial interest of the Company set forth in the Prospectus under the
heading "Shares of Beneficial Interest and Shareholder Liability" is true
and correct in all material respects and the issued and outstanding shares
of beneficial interest of the Company are as set forth in the Prospectus
under the heading "Capitalization" (except for subsequent issuances, if
any, pursuant to this Agreement or pursuant to employee, trustee or
director benefit plans of the Company, the Operating Partnership and the
Service Companies as described in the Prospectus or the issuance of Units
in connection with the acquisition of properties, directly or indirectly,
by the Operating Partnership). The issued and outstanding shares of Common
Stock have been duly authorized and validly issued and are fully paid and,
except as described in the Prospectus, nonassessable.
(E) The Stock has been duly autho-
rized for issuance and sale to the Underwriter pursuant to this
Agreement and, when issued and delivered by the Company pursuant to this
Agreement against payment of the consideration set forth herein, will be
validly issued and fully paid and, except as described in the Prospectus,
nonassessable.
(F) The issuance of the Stock is not
subject to preemptive or other similar rights arising by operation of law,
under the charter or by-laws of the Company or, to such counsel's
knowledge, otherwise.
(G) Each of the Service Companies has
been duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation (such
counsel being entitled to rely in respect of matters of fact upon
certificates of public officials or officers of the
20
Company). Each of the Service Companies has corporate power
and authority to own, lease and operate its properties and to conduct the
business in which it is engaged or proposes to engage as described in the
Prospectus. To such counsel's knowledge after due inquiry, each of the
Service Companies is duly qualified as a foreign corporation 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 Properties (taken as a whole) or of the Company (such counsel being
entitled to rely in respect of matters of fact upon certificates of public
officials or officers of the Company). All of the issued and outstanding
capital stock of each of the Service Companies has been duly authorized and
validly issued, is fully paid and nonassessable and, to such counsel's
knowledge, is owned as described in the Prospectus, in each case free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim
or equity. To such counsel's knowledge after due inquiry, the Operating
Partnership and the other subsidiaries identified in the Registration
Statement are the only subsidiaries of the Company required to be
identified as such in the Company's Annual Report on Form 10-K pursuant to
Item 601 of Regulation S-K.
(H) The Operating Partnership has
been duly formed and is validly existing as a limited partnership in good
standing under the Delaware Act (such counsel being entitled to rely in
respect of matters of fact upon certificates of public officials or
officers of the Company). The Operating Partnership has 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
21
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 Properties (taken as a whole) or of the Company (such counsel being
entitled to rely in respect of matters of fact upon certificates of public
officials or officers of the Company). The Company is the sole general
partner of the Operating Partnership and is the holder of ______ Units, or
approximately ____% of the _______ issued and outstanding Units (such
counsel to supply the appropriate numbers and percentages as of such
Delivery Date).
(I) This Agreement has been duly
authorized, executed and delivered by the Company and the Operating
Partnership and constitutes the valid and binding agreement of such party,
enforceable against such party in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting creditors' rights generally and by general
principles of equity and, to the extent this Agreement contains
indemnification provisions for violations of federal or state securities
laws, as enforceability of such provisions may be limited under federal and
state securities laws.
(J) From and after the Company's
taxable year ending December 31, 1994, the Company has been organized in
conformity with the requirements for qualification as a real estate
investment trust under the Code, and its proposed method of operation as
described in the Prospectus and as represented by the management of the
Company will enable it to continue to satisfy the requirements for taxation
as a real estate investment trust under the Code.
22
(K) Neither the Company, the Operat-
ing Partnership nor any Subsidiary is required to be regis-
tered under the 1940 Act.
(L) The Registration Statement has
been declared effective under the Securities Act, and to such counsel's
knowledge after due inquiry, no stop order suspending the effectiveness of
the Registration Statement has been issued under the Securities Act or
proceedings therefor initiated or threatened by the Commission.
(M) At the time the Registration
Statement became effective and at the date hereof, the Registration
Statement (other than the financial statements and supporting schedules
included therein, as to which no opinion need be rendered) complied as to
form in all material respects with the requirements of the Securities Act
and the Rules and Regulations.
(N) The terms of the Common Stock are
accurately described in all material respects in the Prospectus, and the
form of certificate used to evidence the Common Stock is in due and proper
form and complies with all applicable statutory requirements.
(O) To such counsel's knowledge after
due inquiry, there is no action, suit or proceeding before or by any court
or governmental agency or body, domestic or foreign, now pending,
threatened against or affecting the Company, the Operating Partnership or
any Subsidiary, or of which any of their respective property or assets is
the subject, which is required to be disclosed in the Registration
Statement, other than as disclosed therein, or which, if determined
adversely, individually or in the aggregate, might result in a Material
Adverse Effect; to such counsel's knowledge after due inquiry, all pending
legal or governmental proceedings to which the Company, the Operating
Partnership or any Subsidiary is a party or to which any of their property
or assets is subject which are not described in the Registration
23
Statement, including ordinary routine litigation incidental to
the business, are, considered in the aggregate, not material to the
Company. To such counsel's knowledge after due inquiry, there are no
contracts, indentures, mortgages, loan agreements, notes, leases or other
instruments or documents which are required to be described or referred to
in the Registration Statement or to be filed as exhibits thereto by the
Securities Act or the Rules and Regulations, other than those described or
referred to therein or filed as exhibits thereto, and the descriptions
thereof or references thereto are correct in all material respects.
(P) The information in the Prospectus
under the captions "Management," "Shares of Beneficial Interest and
Shareholder Liability," "Description of Common Shares," "Description of
Preferred Shares," "Description of Securities Warrants," "Federal Income
Tax Considerations" and "Certain United States Tax Considerations for Non-
U.S. Shareholders," to the extent that it constitutes matters of law or
legal conclusions, has been reviewed by such counsel and is correct in all
material respects.
(Q) Except as disclosed in the
Prospectus and except to the extent that the inaccuracy of any of the
following, either individually or in the aggregate, would not have a
Material Adverse Effect: to such counsel's knowledge after due inquiry,
none of the Company, the Operating Partnership or any Service Company is in
violation of its declaration of trust, charter, by-laws, certificate of
limited partnership, partnership agreement or other governing document, as
the case may be, and none of such entities 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 to which such entity is or was a party or by which such entity
may be bound or affected, or to which any of the property or assets of such
entity is subject; to such counsel's knowledge after due inquiry, the
execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated herein by the Company, the
24
Operating Partnership and the Service Companies (and any entity
controlled by such entities), as applicable, did not and will not conflict
with or constitute a breach of, or default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any of the Properties
or any other property or assets of any such entity pursuant to any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument, including without limitation any partnership agreement, 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, nor has such
action resulted or will such action result in any violation of the
declaration of trust, charter, by-laws, certificate of limited partnership,
partnership agreement or other governing document, as the case may be, of
such entity or any applicable law, administrative regulation or
administrative or court decree.
(R) No authorization, approval,
consent or order of any court or governmental authority or agency is
required in connection with the offering, issuance or sale of the Stock to
the Underwriter, except such as may be required under the Securities Act or
the Rules and Regulations or state securities laws of any state or other
jurisdiction and except for such as have been obtained.
(S) To such counsel's knowledge after
due inquiry, there are no persons with registration or other similar rights
to have any securities of the Company, the Operating Partnership or the
Subsidiaries registered pursuant to the Registration Statement.
25
(T) The Operating Partnership will be
treated for Federal income tax purposes as a partnership, and not as an
association taxable as a corporation.
(e) Either Xxxxxxx X. Xxxx, Chairman of the Board of
the Company or Xxxxx X. Xxxxx, President of the Company, shall have
furnished to the Underwriter his written opinion addressed to the Under-
writer and dated such Delivery Date, in form and substance reasonably
satisfactory to the Underwriter, to the effect that:
(A) Each Property Partnership has
been duly formed and is validly existing as a limited or general
partnership or limited liability company, as the case may be, in good
standing (in the case of each limited partnership or limited liability
company) under the laws of the jurisdiction of its formation (such counsel
being entitled to rely in respect of matters of fact upon certificates of
public officials or officials of the Company). Each Property Partnership
has the 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. To such counsel's knowledge after due
inquiry, each Property 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,
business affairs or business prospects of such Property Partnership or any
Property; all of the partnership or limited liability company interests in
each Property Partnership have been duly authorized for issuance and are
validly issued and fully paid, in each case free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity. Each
partnership agreement relating to a Property Partnership is in full force
and effect. Except for the Property Partnerships that constitute Co-
Investment Joint Ventures, the Operating Partnership and the Company own
all of the partnership interests of each Property
26
Partnership. The Operating Partnership is the sole general
partner (except in the case of Co-Investment Joint Ventures that are
general partnerships) or managing member of, and owns at least the
percentage partnership or membership interest indicated in the Prospectus
under the heading "The Communities" in, each of the Co-Investment Joint
Ventures.
(B) Except as disclosed in the
Prospectus and except to the extent that the inaccuracy of any of the
following, either individually or in the aggregate, would not have a
Material Adverse Effect: to such counsel's knowledge after due inquiry,
none of the Property Partnerships is in violation of its declaration of
trust, charter, by-laws, certificate of limited partnership, partnership
agreement or other governing document, as the case may be, and none of such
entities 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 to which such
entity is or was a party or by which such entity may be bound or affected,
or to which any of the property or assets of such entity is subject; to
such counsel's knowledge after due inquiry, the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated herein by the Company, the Operating Partnership and the
Subsidiaries, as applicable, did not and will not conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any of the Properties or
any other property or assets of any Property Partnership pursuant to any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument, including without limitation any partnership agreement, to
which any such Property Partnership is a party or by which any such
Property Partnership may be bound, or to which any of the property or
assets of any such Property Partnership is subject, nor has such action
resulted or will such action result in any violation of the declaration of
trust, charter, by-laws, certificate of limited partnership, partnership
agreement or other governing document, as the case may be, of any such
27
Property Partnership or any applicable law, administrative
regulation or administrative or court decree.
(f) The Underwriter shall have received from Skadden,
Arps, Slate, Xxxxxxx & Xxxx (Illinois), counsel for the Underwriter, such
opinion or opinions, dated such Delivery Date, with respect to the issuance
and sale of the Stock, the Registration Statement, the Prospectus and other
related matters as the Underwriter may reasonably require, and the Company
shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters.
(g) In giving their opinions required by subsections
(7)(d) and (7)(f), respectively, of this Section 7, Xxxxx, Xxxxx & Xxxxx
and Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois) shall each additionally
state that nothing has come to their attention that would lead them to
believe that the Registration Statement (except for financial statements
and schedules and other financial or statistical data included therein, as
to which counsel need make no statement), at the time it became effective
or at the applicable Delivery Date, 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 that
the Prospectus (except for financial statements and schedules and other
financial or statistical data included therein, as to which counsel need
make no statement), at the applicable Delivery Date, included or includes
an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. The
opinion described in Paragraph (J) above may be based on assumptions
relating to the organization and operation of the partnerships in which the
Operating Partnership will hold an interest and of the Subsidiaries, and
may be conditioned upon representations made by the Company as to certain
factual matters relating to the Company's organization and intended or
expected manner or operation, and the opinion in Paragraph (T) above may be
based upon representations of the Company and may assume that the Operating
Partnership will not constitute a "publicly traded partnership" within the
meaning of Section 7704(b) of the Code.
(h) At the time of execution of this Agreement, the
Underwriter shall have received from KPMG Peat Marwick LLP a letter, in
form and substance satisfactory to the Underwriter, addressed to the
Underwriter and dated the date hereof (i) confirming that they are indepen-
dent public accountants within the meaning of the Securities Act and are in
compliance with the applicable requirements relating to the qualification
of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii)
stating, as of the date hereof (or, with respect to matters involving
changes or developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a date not more
than five days prior to the date hereof), the conclusions and findings of
such firm with respect to the
28
financial information and other matters ordinarily covered by accountants'
"comfort letters" to underwriters in connection with registered public
offerings.
(i) With respect to the letter of KPMG Peat Marwick LLP
referred to in the preceding paragraph and delivered to the Underwriter
concurrently with the execution of this Agreement (the "initial letter"),
as of the Delivery Date the Company shall have furnished to the Underwriter
a letter (the "bring-down letter") of such accountants, addressed to the
Underwriter and dated such Delivery Date (i) confirming that they are
independent public accountants within the meaning of the Securities Act and
are in compliance with the applicable requirements relating to the qualifi-
cation of accountants under Rule 2-01 of Regulation S-X of the Commission,
(ii) stating, as of the date of the bring-down letter (or, with respect to
matters involving changes or developments since the respective dates as of
which specified financial information is given in the Prospectus, as of a
date not more than five days prior to the date of the bring-down letter),
the conclusions and findings of such firm with respect to the financial
information and other matters covered by the initial letter and
(iii) confirming in all material respects the conclusions and findings set
forth in the initial letter.
(j) The Company shall have furnished to the Underwriter
a certificate, dated such Delivery Date, of (i) its Chairman of the Board,
its Vice Chairman of the Board, its President or a Vice President and (ii)
its chief financial officer stating that:
(i) The representations, warranties and agree-
ments of the Company in Section 1 are true and correct as of such
Delivery Date; the Company has complied with all its agreements contained
herein; and the conditions set forth in Sections 7(a) and 7(k) have been
fulfilled;
(ii) No stop order suspending the effectiveness of
the Registration Statement has been issued and, to the best of each such
officers' knowledge, no proceeding for that purpose is pending or
threatened by the Commission;
(iii) All filings required by Rule 424(b) of the
Rules and Regulations have been made; and
(iv) They have carefully examined the Registration
Statement and the Prospectus and, in their opinion (A) as of the Effective
Date, the Registration Statement and Prospectus did not include any untrue
statement of a material fact and did not omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, and (B) since the
29
Effective Date no event has occurred which should have been set forth
in a supplement or amendment to the Registration Statement or the
Prospectus which has not been so set forth.
(k) (i) There shall not have occurred any change, or
any development involving a prospective change, in the condition, financial
or otherwise, or in the earnings, business or operations of the Company and
its subsidiaries, taken as a whole, from that set forth in the Prospectus
(exclusive of any amendments or supplements thereto subsequent to the date
of this Agreement) that, in the Underwriter's judgment, is material and
adverse and that makes it, in the Underwriter's judgment, impracticable to
market the Stock on the terms and in the manner contemplated in the
Prospectus, (ii) neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any loss or
interference with its business from fire, explosion, flood, earthquake or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as
set forth or contemplated in the Prospectus or (iii) since such date there
shall not have been any change in the stock, partnership interests or long-
term debt of the Company or any of its subsidiaries or any Material Adverse
Change, otherwise than as set forth in the Prospectus, the effect of which,
in any such case described in clause (i), (ii) or (iii), is, in the
judgment of the Underwriter, so material and adverse as to make it imprac-
ticable or inadvisable to proceed with the public offering or the delivery
of the Stock being delivered on such Delivery Date on the terms and in the
manner contemplated in the Prospectus.
(l) The New York Stock Exchange, Inc. shall have
approved the Stock for listing, subject only to official notice of issu-
ance.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Underwriter. The Company shall furnish to
the Underwriter conformed copies of such opinions, certificates, letters
and other documents in such number as the Underwriter shall reasonably
request. If any of the conditions specified in this Section 7 shall not
have been fulfilled when and as required by this Agreement, the Agreement
and all of the respective obligations of the Underwriter hereunder may be
cancelled at, or at any time prior to, each Delivery Date, by the Under-
writer. Any such cancellation shall be without liability of the Underwrit-
er to the Company. Notice of such cancellation shall be given the Company
in writing, or by telegraph or telephone and confirmed in writing.
30
8. INDEMNIFICATION AND CONTRIBUTION
(a) Each of the Company and the Operating Partnership
shall indemnify and hold harmless the Underwriter, its officers and
employees, and each person, if any, who controls the Underwriter within the
meaning of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof (including,
but not limited to, any loss, claim, damage, liability or action relating
to purchases and sales of Stock), to which the Underwriter, officer or
employee or controlling person may become subject, under the Securities Act
or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or supplement
thereto or (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and shall reimburse the Underwriter and
each such officer, employee or controlling person promptly upon demand for
any legal or other expenses reasonably incurred by the Underwriter,
officer, employee or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred; PROVIDED, HOWEVER, that
neither the Company nor the Operating Partnership shall be liable in any
such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged
untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any such
amendment or supplement in reliance upon and in conformity with written
information concerning the Underwriter furnished to the Company through the
Underwriter by or on behalf of the Underwriter specifically for inclusion
therein. The foregoing indemnity agreement is in addition to any liability
which the Company or the Operating Partnership may otherwise have to the
Underwriter or to any officer, employee or controlling person of the
Underwriter.
(b) The Underwriter shall indemnify and hold harmless
the Operating Partnership, the Company, the Company's officers, employees
and directors (including any person who, with his or her consent, is named
in the Registration Statement as about to become a director of the Compa-
ny), the Company's officers who signed the Registration Statement and each
person, if any, who controls the Company or the Operating Partnership
within the meaning of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof, to
which the Operating Partnership, the Company or any such director, officer
or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises
out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or supplement
thereto or (ii) the
31
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not mislead-
ing, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information concerning the
Underwriter furnished to the Company through the Underwriter by or on
behalf of the Underwriter specifically for inclusion therein, and shall
reimburse the Company, the Operating Partnership and any such director,
officer or controlling person for any legal or other expenses reasonably
incurred by the Company, the Operating Partnership or any such director,
officer or controlling person in connection with investigating or defending
or preparing to defend against any such loss, claim, damage, liability or
action as such expenses are incurred. The foregoing indemnity agreement is
in addition to any liability which the Underwriter may otherwise have to
the Operating Partnership, the Company or any such director, officer or
controlling person.
(c) Promptly after receipt by an indemnified party
under this Section 8 of notice of any claim or the commencement of any
action, the indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the claim or the commencement of that
action; PROVIDED, HOWEVER, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under this
Section 8 except to the extent it has been materially prejudiced by such
failure and, PROVIDED, FURTHER, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have to an
indemnified party otherwise than under this Section 8. If any such claim
or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified party.
After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying
party shall not be liable to the indemnified party under this Section 8 for
any legal or other expenses subsequently incurred by the indemnified party
in connection with the defense thereof other than reasonable costs of
investigation; PROVIDED, HOWEVER, that the Underwriter shall have the right
to employ counsel to represent itself and its officers, employees and
controlling persons who may be subject to liability arising out of any
claim in respect of which indemnity may be sought by the Underwriter
against the Company or the Operating Partnership under this Section 8 if,
in the reasonable judgment of the Underwriter, it is advisable for the
Underwriter and those officers, employees and controlling persons to be
jointly represented by separate counsel as a result of actual or perceived
conflicts of interest between such parties, on the one hand, and the
Company and the Operating Partnership, on the other hand, and in that event
the fees and expenses of such separate counsel (but not more that one firm,
in addition to any local counsel, shall be reimbursed hereunder) shall be
paid by the Company
32
and the Operating Partnership. No indemnifying party shall (i) without the
prior written consent of the indemnified parties (which consent shall not
be unreasonably withheld), settle or compromise or consent to the entry of
any judgment with respect to any pending or threatened claim, action, suit
or proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compro-
mise or consent includes an unconditional release of each indemnified party
from all liability arising out of such claim, action, suit or proceeding,
or (ii) be liable for any settlement of any such action effected without
its written consent (which consent shall not be unreasonably withheld), but
if settled with the consent of the indemnifying party or if there be a
final judgment of the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and
against any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section
8 shall for any reason be unavailable to or insufficient to hold harmless
an indemnified party under Section 8(a) or 8(b) in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred to
therein, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate
to reflect the relative benefits received by the Company and the Operating
Partnership on the one hand and the Underwriter on the other from the
offering of the Stock or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appro-
priate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Operating Partner-
ship on the one hand and the Underwriter on the other with respect to the
statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company
and the Operating Partnership on the one hand and the Underwriter on the
other with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Stock
purchased under this Agreement (before deducting expenses) received by the
Company, on the one hand, and the total underwriting discounts and commis-
sions received by the Underwriter with respect to the shares of the Stock
purchased under this Agreement, on the other hand, bear to the total gross
proceeds from the offering of the shares of the Stock under this Agreement,
in each case as set forth in the table on the cover page of the Prospectus.
The relative fault shall be determined by reference to whether the untrue
or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the
Company, the Operating Partnership or the Underwriter, the intent of the
parties and their relative knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company, the
Operating Partnership
33
and the Underwriter agree that it would not be just and equitable if
contributions pursuant to this Section 8(d) were to be determined by pro
rata allocation or by any other method of allocation which does not take
into account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the loss, claim,
damage or liability, or action in respect thereof, referred to above in
this Section 8(d) shall be deemed to include, for purposes of this Section
8(d), any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 8(d), the Underwrit-
er shall not be required to contribute any amount in excess of the amount
by which the total price at which the Stock underwritten by it and distrib-
uted to the public was offered to the public exceeds the amount of any
damages which the Underwriter has otherwise paid or become liable to pay by
reason of any 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 misrep-
resentation.
For purposes of this Section 8, the Company and the Operating
Partnership shall be deemed one party and jointly and severally liable for
any obligations hereunder.
(e) The Underwriter confirms and the Company acknowl-
edges that the statements with respect to the public offering of the Stock
by the Underwriter set forth on the cover page of, the legend concerning
over-allotments on the inside front cover page of and the concession and
reallowance figures appearing under the caption "Underwriting" in, the
Prospectus are correct and constitute the only information concerning the
Underwriter furnished in writing to the Company by or on behalf of the
Underwriter specifically for inclusion in the Registration Statement and
the Prospectus.
9. TERMINATION. This Agreement shall be subject to termina-
tion by notice given by the Underwriter to the Company, if (a) 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, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago
Board of Trade, (ii) trading of any securities of the Company shall have
been suspended 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 or any change
in financial markets or any calamity or crisis that, in the Underwriter's
judgment, is material and adverse and (b) in the case of any of the events
specified in clauses (a)(i) through (iv), such event, singly or together
with any other such event, makes
34
it, in the Underwriter's judgment, impracticable to market the Stock on the
terms and in the manner contemplated in the Prospectus.
10. REIMBURSEMENT OF UNDERWRITER'S EXPENSES. If the Company
shall fail to tender the Stock for delivery to the Underwriter by reason of
any failure, refusal or inability on the part of the Company to perform any
agreement on its part to be performed hereunder, or because any other
condition of the Underwriter's obligations hereunder required to be
fulfilled by the Company is not fulfilled, the Company will reimburse the
Underwriter for all reasonable out-of-pocket expenses (including fees and
disbursements of counsel) incurred by the Underwriter in connection with
this Agreement and the proposed purchase of the Stock.
11. NOTICES, ETC. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Underwriter, shall be delivered or sent
by mail, telex or facsimile transmission to Xxxxxx Xxxxxxx & Co. Incorpo-
rated, at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:__________
_______________________ (Fax: (212)_______)]; and
(b) if to the Company, shall be delivered or sent by
mail, telex or facsimile transmission to it at 000 Xxxxx Xxxxxx Xxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: President; Facsimile:
(000) 000-0000.
Any such statements, requests, notices or agreements shall take
effect at the time of receipt thereof.
12. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement
shall inure to the benefit of and be binding upon the Underwriter, the
Company and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except
that (A) the representations, warranties, indemnities and agreements of the
Company contained in this Agreement shall also be deemed to be for the
benefit of the person or persons, if any, who control the Underwriter
within the meaning of Section 15 of the Securities Act and (B) the indemni-
ty agreement of the Underwriter contained in Section 8(b) of this Agreement
shall be deemed to be for the benefit of directors of the Company, officers
of the Company who have signed the Registration Statement and any person
controlling the Company within the meaning of Section 15 of the Securities
Act. Nothing in this Agreement is intended or shall be construed to give
any person, other than the persons referred to in this Section 12, any
legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein.
35
13. SURVIVAL. The respective indemnities, representations,
warranties and agreements of the Company and the Underwriter contained in
this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall survive the delivery of and payment for the Stock and
shall remain in full force and effect, regardless of any investigation made
by or on behalf of any of them or any person controlling any of them.
14. DEFINITION OF THE TERMS "BUSINESS DAY" AND "SUBSIDIARY".
For purposes of this Agreement, (a) "business day" means any day on which
the New York Stock Exchange, Inc. is open for trading and (b) "subsidiary"
has the meaning set forth in Rule 405 of the Rules and Regulations.
15. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of New York.
16. COUNTERPARTS. This Agreement may be executed in one or
more counterparts and, if executed in more than one counterpart, the
executed counterparts shall each be deemed to be an original but all such
counterparts shall together constitute one and the same instrument.
17. HEADINGS. The headings herein are inserted for conve-
nience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
18. LIMITATION OF LIABILITY OF SHAREHOLDERS AND OFFICERS OF
THE COMPANY. No obligation or liability of the Company which may arise at
any time under this Agreement or any obligation or liability which may be
incurred by it pursuant to any other instrument, transaction or undertaking
contemplated hereby shall be personally binding upon, nor shall resort for
the enforcement thereof be had to, the property of any of the Company's
shareholders, trustees, officers, employees or agents solely as a result of
their status as, and solely in their capacities as, shareholders, trustees,
officers, employees or agents, as the case may be, regardless of whether
such obligation or liability is in the nature of contract, tort or other-
wise.
If the foregoing correctly sets forth the agreement between the
Company and you, please indicate your acceptance in the space provided for
that purpose below.
Very truly yours,
AMLI RESIDENTIAL PROPERTIES TRUST
By: /S/ XXXXX X. XXXXX
Name: Xxxxx X. Xxxxx
Title: President
AMLI RESIDENTIAL PROPERTIES, L.P.
By: AMLI RESIDENTIAL
PROPERTIES TRUST, General Partner
By: /S/ XXXXX X. XXXXX
Name: Xxxxx X. Xxxxx
Title: President
Accepted:
Xxxxxx Xxxxxxx & Co. Incorporated
By: /S/ XXXXXXX X. XXXXXX XX
Name: Xxxxxxx X. Xxxxxx XX
Title: Principal
