EXHIBIT 1.1
UNDERWRITING AGREEMENT
COUSINS PROPERTIES INCORPORATED
4,000,000 shares of 7 1/2 % Series B Cumulative Redeemable Preferred Stock
(par value $1.00 per share)
December 10, 0000
XXXX XX XXXXXXX SECURITIES LLC
WACHOVIA CAPITAL MARKETS, LLC
As Representatives of the several Underwriters
c/o Banc of America Securities LLC
Hearst Tower
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
Cousins Properties Incorporated, a Georgia corporation (the "Company")
confirms its agreement with Banc of America Securities LLC and Wachovia Capital
Markets, LLC (the "Representatives") as representatives of the several
underwriters listed on the attached Schedule B (the "Underwriters"), as follows:
1. Description of Securities. The Company proposes to issue and sell to
the Underwriters 4,000,000 shares (the "Securities") of 7 1/2 % Series B
Cumulative Redeemable Preferred Stock of the Company, par value $1.00 per share
(the "Series B Preferred Stock"). The terms of the Series B Preferred Stock will
be set forth in the Articles of Amendment to the Restated and Amended Articles
of Incorporation of the Company creating the Series B Preferred Stock and
designating the rights, preferences and restrictions thereof (the "Articles of
Amendment").
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, the Underwriters that:
(a) Registration statements on Form S-3 (File Nos. 333-106401 and
333-120612), with respect to the Securities, including a prospectus (as amended,
the "Base Prospectus"), and one or more amendments thereto, have been carefully
prepared by the Company in conformity with the requirements of the Securities
Act of 1933, as amended (the "Act") and the rules and regulations (the "1933 Act
Rules and Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder, have been filed with the Commission and declared
effective. No stop order suspending the effectiveness of the registration
statements or the use of any prospectus relating to the offering of the
Securities has been issued, and no proceeding for that purpose has been
instituted or, to the Company's knowledge, threatened by the Commission.
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One or more prospectus supplements, including one or more preliminary prospectus
supplements, (each, a "Prospectus Supplement") setting forth the terms of the
offering, sale and plan of distribution of the Securities and additional
information concerning the Company and its business has been or will be so
prepared and will be filed pursuant to Rule 424(b) of the 1933 Act Rules and
Regulations. Copies of such registration statements, the Base Prospectus, and
any such amendments or supplements relating to the Securities (including one
fully executed copy of the registration statement and of each amendment thereto)
have been delivered to the Underwriters and their counsel. The registration
statements in the form in which they were declared effective by the Commission,
is referred to herein collectively as the "Registration Statement," and the Base
Prospectus included in the Registration Statement most recently declared
effective, as supplemented by each Prospectus Supplement relating to the
Securities, in the respective forms they are filed with the Commission pursuant
to Rule 424(b), are referred to herein as the "Prospectus." Any reference herein
to the Registration Statement, the Prospectus or any amendment or supplement
thereto shall be deemed to refer to and include the documents incorporated by
reference therein, and any reference herein to the terms "amend," "amendment" or
"supplement" with respect to the Registration Statement or Prospectus shall be
deemed to refer to and include any document filed with the Commission deemed to
be incorporated by reference therein. For purposes of this Underwriting
Agreement, all references to the Registration Statement, a Prospectus Supplement
and the Prospectus or to any amendment or supplement thereto shall be deemed to
refer to the version filed with the Commission pursuant to its Electronic Data
Gathering Analysis and Retrieval System ("XXXXX"), and such copy shall be
identical in content to any such document delivered to the Underwriters for use
in connection with the offering of the Securities.
(b) The Registration Statement, when it became effective, and the
Prospectus and any amendment or supplement thereto, on the date of filing
thereof with the Commission and at the Closing Date (as hereinafter defined),
conformed or will conform in all material respects with the requirements of the
Act and the 1933 Act Rules and Regulations; each part of the Registration
Statement, when it became effective, did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; the Prospectus and any
amendment or supplement thereto, on the date of filing thereof with the
Commission and at the Closing Date, did not or will not include an untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; except that the foregoing shall not apply to statements
in, or omissions from, any such document in reliance upon, and in conformity
with, written information concerning the Underwriters that was furnished to the
Company by Representatives specifically for use in the preparation thereof, it
being understood and agreed that the only such information is that described as
such in Section 6(a) hereof.
(c) The documents incorporated by reference in the Registration
Statement, the Prospectus and any amendment or supplement thereto, when they
were or are filed with the Commission under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), conformed or will conform with the requirements
of the Exchange Act and/or the rules and regulations of the Commission
thereunder (the "Exchange Act Rules and Regulations"), as applicable.
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(d) The consolidated financial statements of the Company together
with the related schedules and notes thereto, included or incorporated by
reference in the Registration Statement and Prospectus fairly present the
financial condition of the Company and its subsidiaries as of the dates
indicated and the results of operations, changes in financial position,
stockholders' equity and cash flows for the periods therein specified, in
conformity with accounting principles generally accepted in the United States
consistently applied throughout the periods involved (except as otherwise stated
therein). The summary and selected financial and statistical data included or
incorporated by reference in the Registration Statement and the Prospectus
present fairly the information shown therein and, to the extent based upon or
derived from the financial statements, have been compiled on a basis consistent
with the financial statements presented therein. Furthermore, all financial
statements required by Rules 3-05, 3-14 and Article 11 of Regulation S-X have
been included or incorporated by reference in the Registration Statement and the
Prospectus and any such financial statements are in conformity with such rules.
No other financial statements are required to be set forth or to be incorporated
by reference in the Registration Statement or the Prospectus under the Act or
the 1933 Act Rules and Regulations thereunder.
(e) Deloitte & Touche LLP, whose reports are incorporated by
reference in the Registration Statement, are and, during the periods covered by
their reports, were independent public accountants as required by the Act and
the 1933 Act Rules and Regulations and as required by the applicable rules and
regulations of the New York Stock Exchange, Inc. ("NYSE").
(f) The only direct or indirect subsidiaries (as defined in the
1933 Act Rules and Regulations) of the Company are the entities listed on
Schedule A hereto (the "Subsidiaries"). The Subsidiaries in which the Company
owns, directly or indirectly, 50% or more of the outstanding ownership interests
are herein referred to as the "50% Subsidiaries." Each of the Company and the
50% Subsidiaries has been duly incorporated or formed, as the case may be, and
is an existing corporation, general or limited partnership, or other legal
entity, as the case may be, in good standing under the laws of its jurisdiction
of incorporation or formation, as the case may be. Each of the Company and the
50% Subsidiaries has full power and authority (corporate and other) to conduct
its business as described in the Registration Statement and Prospectus, and is
duly qualified or registered to do business in each jurisdiction in which it
owns or leases real property or in which the conduct of its business requires
such qualification or registration except where the failure to be so qualified
or registered, considering all such cases in the aggregate, would not have a
material adverse effect on the assets, properties, business, results of
operations or condition (financial or otherwise) of the Company and the 50%
Subsidiaries, taken as a whole ("Material Adverse Effect"); and, other than the
50% Subsidiaries, the Company owns no stock or other beneficial interest in any
corporation, partnership, joint venture or other business entity representing
50% or more of the outstanding stock or ownership interest of such entity.
(g) Except as disclosed on Schedule A hereto, all of the issued
and outstanding ownership interests of each 50% Subsidiary which are owned
directly or indirectly by the Company have been duly authorized and are validly
issued, fully paid and nonassessable and are wholly-owned by the Company,
directly or through other Subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
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(h) All of the issued and outstanding shares of capital stock of
the Company have been duly authorized and are validly issued, fully paid and
nonassessable and conform to the description thereof in the Prospectus. The
stockholders of the Company have no preemptive rights with respect to the
Securities. The Company has the authorized capital stock set forth in the Base
Prospectus. As of December 10, 2004, (A) 150,000,000 shares of common stock, par
value $1.00 per share (the "Common Stock") were authorized for issuance, of
which 49,862,874 shares were issued and outstanding, (B) 20,000,000 shares of
preferred stock, par value $1 per share, of which 4,000,000 shares of Series A
Cumulative Redeemable Preferred Stock were issued and outstanding ("Preferred
Stock"). All of the issued and outstanding shares of capital stock of the
Company and all of the ownership interests in each 50% Subsidiary which are
owned directly or indirectly by the Company have been offered, sold and issued
by such entity in compliance with all applicable laws, including without
limitation, federal and state securities laws; except as described in the
Prospectus, there is no outstanding option, warrant or other right requiring the
issuance of, and no commitment, plan or arrangement to issue, any shares of
capital stock of the Company or equity interests in any wholly-owned Subsidiary
or any security convertible into or exchangeable for such shares or interests.
(i) The Securities have been duly authorized by the Company for
issuance and sale pursuant to this Underwriting Agreement, and when issued and
delivered by the Company pursuant to this Underwriting Agreement against payment
of the consideration therefor specified herein, will be validly issued, fully
paid and nonassessable. The Securities conform to the description thereof in the
Prospectus and will not be subject to any preemptive rights of any
securityholder of the Company. No holder of Series B Preferred Stock will be
subject to personal liability by reason of being such a holder. The Articles of
Amendment will be in full force and effect prior to the Closing Date and will
comply with all applicable legal requirements.
(j) Except for transactions described as contemplated by the
Company in the Prospectus, subsequent to the date of the most recent financial
statements incorporated by reference in the Registration Statement and the
Prospectus, the Company and the 50% Subsidiaries have not incurred any
liabilities or obligations, direct or contingent, or entered into any
transactions, not in the ordinary course of business, that are material to the
Company and the 50% Subsidiaries taken as a whole, and there has not been any
material change in the capital stock or structure, short-term debt or long-term
debt of the Company and the 50% Subsidiaries or any Material Adverse Effect.
Except for regular dividends on the Company's Common Stock, in amounts per share
that are consistent with past practice or the charter documents of the Company,
there has been no dividend or distribution of any kind declared, paid or made by
the Company on any class of its capital stock.
(k) Except as set forth in the Prospectus, there is not pending
or, to the knowledge of the Company, threatened any action, suit or proceeding
to which the Company or any of the 50% Subsidiaries or any of their respective
officers or directors is a party, or of which any of their properties or other
assets is the subject, before or by any court or governmental agency or body,
that is reasonably likely to result in any Material Adverse Effect.
(l) No labor dispute with the employees of the Company or any of
the 50% Subsidiaries exists or, to the knowledge of the Company, is imminent.
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(m) During the period of at least the last 12 calendar months
prior to the date of this Underwriting Agreement, the Company has timely filed
with the Commission all documents and other materials required to be filed
pursuant to Sections 13, 14 and 15(d) under the Exchange Act.
(n) There are no contracts or documents of the Company that are
required to be filed as exhibits to the Registration Statement or to any of the
documents incorporated by reference therein by the Act or the Exchange Act or by
the rules and regulations of the Commission thereunder that have not been so
filed.
(o) This Underwriting Agreement has been duly authorized, executed
and delivered by the Company.
(p) The execution and performance of this Underwriting Agreement
and the consummation of the transactions contemplated herein will not result in
a breach or violation of any of the terms and provisions of, or constitute a
default under, (i) any agreement or instrument to which the Company or any of
the 50% Subsidiaries is a party or by which they are bound or to which any of
the property or other assets of the Company or any of the 50% Subsidiaries is
subject except as, individually or in the aggregate, would not result in a
Material Adverse Effect, (ii) the articles of incorporation, by-laws,
certificate of general or limited partnership, partnership agreement or other
organizational document, as applicable, of the Company or any of the 50%
Subsidiaries, or (iii) any law, statute, order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company or any of
the 50% Subsidiaries or any of their properties or other assets; no consent,
approval, authorization or order of, filing with, or notice to any court or
governmental agency or body is required for the consummation of the transactions
contemplated by this Underwriting Agreement in connection with the issuance or
sale of the Securities by the Company, except such as may be required under the
Act and applicable state securities or blue sky laws, if any, or pursuant to the
listing requirements of the NYSE; and the Company has full power and authority
to authorize, issue and sell the Securities as contemplated by this Underwriting
Agreement, free of any preemptive rights.
(q) Except as otherwise described in the Prospectus or as would
not have a Material Adverse Effect, (1) the Company and the 50% Subsidiaries
have complied in all respects with all laws, regulations and orders applicable
to them or their respective businesses, and (2) neither the Company nor any of
the 50% Subsidiaries is in default under any indenture, mortgage, deed of trust,
voting trust agreement, loan agreement, bond, debenture, note agreement or
evidence of indebtedness, lease, contract or other agreement or instrument to
which they are a party or by which they or any of their properties or other
assets are bound, and (3) no other party under any such agreement or instrument
to which the Company or any of the 50% Subsidiaries are a party is, to the
knowledge of the Company, in default in any material respect thereunder. The
Company and the 50% Subsidiaries are not in violation of their respective
articles of incorporation, by-laws, certificate of general or limited
partnership, partnership agreement or other organizational documents, as the
case may be.
(r) Each of the Company and each 50% Subsidiary has good and
marketable title to the properties and assets, as described in the Prospectus,
owned by them, free and clear of all liens, charges, encumbrances or
restrictions, except such as (1) are described in the Prospectus,
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(2) are related to financings described in the Prospectus, or (3) are not
material in relation to the business of the Company and the 50% Subsidiaries on
a consolidated basis. Except as would not have a Material Adverse Effect, the
Company and the 50% Subsidiaries have valid, subsisting and enforceable leases
for the properties described in the Prospectus as leased by the Company (as
lessee) or any 50% Subsidiary (as lessee) with such exceptions as are not
material and do not interfere with the use made and proposed to be made of such
properties by the Company and the 50% Subsidiaries. Except as otherwise
disclosed in the Prospectus, or as would not, individually or in the aggregate,
result in a Material Adverse Effect, (1) no tenant under any of the leases
pursuant to which the Company or any of the 50% Subsidiaries lease their
properties has an option or right of first refusal to purchase the premises
demised under such lease, (2) the use and occupancy of each of the properties of
the Company and the 50% Subsidiaries complies with all applicable codes and
zoning laws and regulations, (3) the Company has no knowledge of any pending or
threatened condemnation or zoning change that will affect the size of, use of,
improvement of, construction on, or access to any of the properties of the
Company and the 50% Subsidiaries, and (4) there is no pending, or to the
Company's knowledge, threatened proceeding or action that will affect the size
of, use of, improvements or construction on, or access to any of the properties
of the Company or any of the 50% Subsidiaries.
(s) Except as described in the Prospectus, there are no contracts,
agreements or understandings between the Company or any of the 50% Subsidiaries
and any person that would give rise to a valid claim against the Company, any of
the 50% Subsidiaries or the Underwriters for a brokerage commission, finder's
fee or other like payment in connection with the offering, issuance and sale of
the Securities.
(t) Except as disclosed in the Prospectus, title insurance in
favor of the Company or a 50% Subsidiary is maintained with respect to each of
the properties owned by them in an amount consistent with the title insurance
maintained by similar companies in similar businesses.
(u) Except as disclosed in the Prospectus, the mortgages and deeds
of trust encumbering the properties and assets described or referred to in the
Prospectus are not convertible into the equity of the Company or any 50%
Subsidiary.
(v) Except as otherwise described in the Prospectus or as would
not have a Material Adverse Effect, neither the Company nor any 50% Subsidiary
has authorized or conducted or has knowledge of the generation, transportation,
storage, presence, use, treatment, disposal, release, or other handling of any
hazardous substance, hazardous waste, hazardous material, hazardous constituent,
toxic substance, pollutant, contaminant, asbestos, radon, polychlorinated
biphenyls ("PCBs"), petroleum product or waste (including crude oil or any
fraction thereof) natural gas, liquefied gas, synthetic gas or other material
defined, regulated, controlled or potentially subject to any remediation
requirement under any environmental law (collectively, "Hazardous Materials"),
on, in, under or affecting any of the Company's or and each 50% Subsidiary's
properties, except in material compliance with applicable laws; except as
disclosed in the Prospectus, the Company's and each 50% Subsidiary's properties
are in material compliance with all federal, state and local laws, ordinances,
rules, regulations and other governmental requirements relating to pollution,
control of chemicals, management of waste (collectively, "Environmental Laws")
and the Company and each 50% Subsidiary are in compliance with all licenses,
permits, registrations and government authorizations necessary to operate under
all
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applicable Environmental Laws in all material respects; except as otherwise
described in the Prospectus or as would not, individually or in the aggregate,
result in a Material Adverse Effect, neither the Company nor any 50% Subsidiary
has received any written notice from any governmental entity and there is no
pending, or, to the knowledge of the Company, threatened claim, litigation or
any administrative agency proceeding that: alleges a violation of any
Environmental Laws by the Company or any 50% Subsidiary; or that the Company or
any 50% Subsidiary is a liable party or a potentially responsible party under
the Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. Section 9601, et. seq., or any state superfund law; has resulted in or
could result in the attachment of an environmental lien on any of the
properties; or alleges that the Company or any 50% Subsidiary is liable for any
contamination of the environment, contamination of the property, damage to
natural resources, property damage, or personal injury based on their activities
or the activities of their predecessors (whether at the properties or elsewhere)
involving Hazardous Materials, whether arising under the Environmental Laws,
common law principles, or other legal standards. Currently and for all recent
periods, in the ordinary course of its business, the Company and the 50%
Subsidiaries conduct Phase I environmental assessments on each of their
properties at the time such property is acquired. None of the entities which
prepared appraisals of the properties or Phase I environmental assessment
reports with respect to such properties was employed for such purpose on a
contingent basis or has any substantial interest in the Company or any 50%
Subsidiary, and none of their directors, officers or employees is connected with
the Company or any 50% Subsidiary as a promoter, selling agent, director,
officer or employee.
(w) Each of the Company and the 50% Subsidiaries maintains
insurance (issued by insurers of recognized financial responsibility) of the
types and in the amounts generally deemed adequate, if any, for their respective
businesses and consistent with insurance coverage maintained by similar
companies in similar businesses, including, but not limited to, insurance
covering real and personal property owned or leased by the Company or the 50%
Subsidiaries against theft, damage, destruction, acts of vandalism and all other
risks customarily insured against, all of which insurance is in full force and
effect.
(x) No holder of outstanding shares of capital stock of the
Company has any rights to sell shares of capital stock of the Company owned by
such holder in the offering contemplated by this Underwriting Agreement.
(y) Since the date of the last audited financial statements
included or incorporated by reference in the Registration Statement and the
Prospectus, except as described therein, (i) there has not been any change in
the assets or properties, business, results of operations or condition
(financial or otherwise) of the Company and Subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of business,
which change is reasonably likely to result in a Material Adverse Effect, nor
any event or development involving a prospective Material Adverse Effect; (ii)
neither the Company nor any of the Subsidiaries has sustained any material loss
or interference with its assets, businesses or properties (whether owned or
leased) from fire, explosion, earthquake, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or any court or legislative
or other governmental action, order or decree; and (iii) neither the Company nor
any of the Subsidiaries has undertaken any liability or obligation, direct or
contingent, except such liabilities or obligations undertaken in the ordinary
course of business.
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(z) Each of the Company and the 50% Subsidiaries have filed all
federal, state, local and foreign income tax returns which have been required to
be filed and has paid all taxes indicated by said returns and all assessments
received by them to the extent that such taxes have become due. No tax
deficiency has been asserted against the Company or any 50% Subsidiary, nor,
does the Company know of any tax deficiency which is likely to be asserted
against the Company or any 50% Subsidiaries; all known tax liabilities, if any,
are adequately provided for on the respective books of the entities in all
material respects.
(aa) Except as would not have a Material Adverse Effect, the
Company and the 50% Subsidiaries hold all material licenses, certificates and
permits from governmental authorities which are necessary to the conduct of
their businesses and are in compliance with the terms and conditions of such
licenses, certificates and permits, and neither the Company nor any 50%
Subsidiary has received any notice of proceedings relating to the revocation or
modification of any such permits, licenses or certificates that, if determined
adversely to the Company or such 50% Subsidiary, would have a Material Adverse
Effect.
(bb) No transaction has occurred between or among the Company or
any Subsidiaries, on one hand, and any of their officers or directors or any
affiliate or affiliates of any such officer or director, on the other hand, that
is required to be described in and is not described or incorporated by reference
in the Registration Statement and the Prospectus.
(cc) Except as otherwise described in the Prospectus, there are no
material outstanding loans or advances or material guarantees of indebtedness by
the Company or any of the 50% Subsidiaries to or for the benefit of any of the
officers or directors of the Company or any of their family members.
(dd) For its taxable years ended December 31, 1998 through December
31, 2003, the Company has been organized and operating in conformity with the
requirements for qualification as a "real estate investment trust" under the
Internal Revenue Code of 1986, as amended (the "Code"). The Company's current
and proposed method of operation will permit it to meet and to continue to meet
the requirements for taxation as a real estate investment trust under the Code.
The Company has no intention of changing its operations or engaging in
activities which would cause it to fail to qualify, or make economically
undesirable its continued qualification as, a real estate investment trust.
(ee) Neither the Company or any 50% Subsidiary is and, after giving
effect to the offering and sale of the Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an "investment
company" or a company "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
(ff) The Company has applied to have the Securities listed on the
NYSE.
(gg) The Articles of Amendment have been duly and validly
authorized and approved by all necessary action on behalf of the Company. Each
consent, approval, authorization, order, license, certificate, permit,
registration, designation or filing by or with any governmental agency or body
necessary for the valid authorization, issuance, sale and delivery of the Series
B Preferred Stock and the execution, delivery and performance of this
Underwriting Agreement
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and the consummation of the transactions contemplated hereby has been made or
obtained or will be made or obtained and is or will be in full force and effect
as of the Closing Date.
(hh) The books, records and system of internal accounting controls
of the Company and the Subsidiaries, taken as a whole, fully comply with Section
13(b)(2) of the Exchange Act, and, except as would have a Material Adverse
Effect or materially injure the reputation of the Company or its executive
officers or directors, to the Company's knowledge, neither the Company nor any
Subsidiary, nor any employee or agent thereof, has made any payment of funds of
the Company or any of the Subsidiaries or received or retained any funds, and no
funds of the Company or any of the Subsidiaries have been set aside to be used
for any payment, in each case in violation of any law, rule or regulation.
(ii) The Company has established and maintains disclosure controls
and procedures (as such term is defined in Rule 13a-14 under the Exchange Act),
which (i) are designed to ensure that material information relating to the
Company, including its consolidated subsidiaries, is made known to the Company's
principal executive officer and its principal financial officer by others within
those entities, particularly during the periods in which the periodic reports
required under the Exchange Act are being prepared, (ii) have been evaluated for
effectiveness as of a date within 90 days prior to the filing of the Company's
most recent annual or quarterly report filed with the Commission and (iii) are
effective in all material respects to perform the functions for which they were
established. Based on the evaluation of the Company's disclosure controls and
procedures described above, the Company is not aware of (a) any significant
deficiency in the design or operation of internal controls which could adversely
affect the Company's ability to record, process, summarize and report financial
data or any material weaknesses in internal controls or (b) any fraud, whether
or not material, that involves management or other employees who have a
significant role in the Company's internal controls. Since the most recent
evaluation of the Company's disclosure controls and procedures described above,
there have been no significant changes in internal controls or in other factors
that could significantly affect internal controls.
3. Purchase, Sale and Delivery of Securities.
(a) On the basis of the representations, warranties and agreements
contained herein, but subject to the terms and conditions set forth herein, the
Company agrees to issue and sell the Securities, severally and not jointly, to
the Underwriters, and each of the Underwriters, severally and not jointly,
agrees to purchase from the Company, the number of Securities set forth opposite
that Underwriter's name in Schedule A hereto, at a purchase price of $24.2125
per share (the "Purchase Price"), reflecting a public offering price of $25.00
per share and an underwriting discount equal to $0.7875 per share (or 3.15 % of
the public offering price). It is understood and agreed that the Underwriters
propose to offer the Securities for sale to the public as set forth in the
Prospectus.
(b) The Company will deliver the Securities, through the
facilities or the Depository Trust Corporation, to Banc of America Securities
LLC for the accounts of the Underwriters against payment of the purchase price
in Federal (same day) funds by wire transfer to an account at a bank acceptable
to the Company drawn to the order of the Company, at the office of Hunton &
Xxxxxxxx LLP, at 10:00 A.M., New York time, on December 17, 2004, or at such
other time
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not later than seven (7) full business days thereafter as Banc of America
Securities LLC and the Company determine, such time being herein referred to as
the "Closing Date."
4. Covenants. The Company covenants and agrees with the Underwriters that:
(a) The Company will file with the Georgia Secretary of State and
cause to be effective prior to the Closing Date the Articles of Amendment
establishing and fixing the rights and preferences of the Series B Preferred
Stock in such form as has been agreed to by the Company and the Underwriters.
(b) The Company will cause the final Prospectus Supplement to be
filed with the Commission on or before the second business day after the date of
this Agreement, or such earlier time as may be required pursuant to the 1933 Act
Rules and Regulations (but only if the Underwriters or their counsel have not
reasonably objected thereto by notice to the Company after having been furnished
a copy a reasonable time prior to filing) and will notify the Underwriters
promptly of such filing. During the period in which a prospectus relating to the
Securities is required to be delivered under the Act, the Company will notify
the Underwriters promptly of the time when any subsequent amendment to the
Registration Statement has become effective or any subsequent supplement to the
Prospectus has been filed, or of any request by the Commission for any amendment
or supplement to the Registration Statement or Prospectus or for additional
information; the Company will prepare and file with the Commission, promptly
upon the Underwriters' request, any amendments or supplements to the
Registration Statement or Prospectus that, in the Underwriters' opinion, may be
necessary or advisable in connection with the Underwriters' distribution of the
Securities; and the Company will file no amendment or supplement to the
Registration Statement or Prospectus (other than any prospectus supplement
relating to the offering of other securities registered under the Registration
Statement or any document required to be filed under the Exchange Act that upon
filing is deemed to be incorporated by reference therein) to which the
Underwriters or their counsel shall reasonably object by notice to the Company
after having been furnished a copy a reasonable time prior to the filing.
(c) The Company will advise the Underwriters, promptly after it
shall receive notice or obtain knowledge thereof, of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement, of the suspension of the qualification or registration of the
Securities for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceeding for any such purpose; and it will promptly use its
best efforts to prevent the issuance of any stop order or to obtain its
withdrawal if such a stop order should be issued.
(d) The Company will comply with all requirements imposed upon it
by the Act, the 1933 Act Rules and Regulations, the Exchange Act and the
Exchange Act Rules and Regulations as from time to time in force, so far as
necessary to permit the continuance of sales of, or dealings in, the Securities
as contemplated by the provisions hereof and the Prospectus. If during such
period where a prospectus relating to the Securities is required to be delivered
under the Act, any event occurs as a result of which, in the judgment of the
Underwriters, the Registration Statement contains an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or the Prospectus
10
as then amended or supplemented would include an untrue statement of a material
fact or omits to state a material fact necessary to make the statements therein,
in the light of the circumstances then existing, not misleading, or if during
such period it is necessary to amend or supplement the Registration Statement or
Prospectus to comply with the Act, the Company will promptly amend or supplement
the Registration Statement or Prospectus (at the expense of the Company) so as
to correct such statement or omission or effect such compliance and, unless
originally identified by an Underwriter, promptly notify the Underwriters.
(e) Upon request, the Company will furnish to the Underwriters
copies of the Registration Statement, the Prospectus (including all documents
incorporated by reference therein) and all amendments and supplements to the
Registration Statement and Prospectus that are filed with the Commission (other
than documents filed pursuant to the Exchange Act and publicly available through
XXXXX) during the period in which a prospectus relating to the Securities is
required to be delivered under the Act or such date which is 90 days after the
Closing Date, whichever is later (including all documents filed with the
Commission during such period that are deemed to be incorporated by reference
therein), in each case as soon as available and in such quantities as the
Underwriters may from time to time reasonably request.
(f) The Company will make generally available to its security
holders in the manner contemplated by Rule 158 of the 1933 Act Rules and
Regulations a consolidated earnings statement (which need not be audited) that
shall satisfy the provisions of Section 11(a) of the Act and Rule 158 of the
1933 Act Rules and Regulations.
(g) Whether or not the transactions contemplated by this
Underwriting Agreement are consummated or this Underwriting Agreement is
terminated, the Company will pay, or reimburse if paid by the Underwriters, all
costs and expenses incident to the performance of the obligations of the Company
under this Underwriting Agreement, including but not limited to costs and
expenses of or relating to (i) the preparation, printing and filing of the
Registration Statement and exhibits thereto, each preliminary prospectus, the
Prospectus and any amendment or supplement to the Registration Statement or the
Prospectus, (ii) the preparation and delivery of certificates representing the
Securities, if any, (iii) costs incurred by the Company in furnishing (including
costs of shipping, mailing and courier) such copies of the Registration
Statement, the Prospectus and any preliminary prospectus, and all amendments and
supplements thereto, as may be requested for use in connection with the offering
and sale of the Securities by the Underwriters or by dealers to whom Securities
may be sold, (iv) the listing of the Securities on the NYSE, (v) filings
required to be made by the Underwriters with the NASD, if any, and the fees,
disbursements and other charges of Underwriter's counsel in connection
therewith, (vi) the registration or qualification of the Securities for offer
and sale under the securities or blue sky laws of such jurisdictions designated
by the Underwriter, including the fees, disbursements and other charges of
Underwriter's counsel in connection therewith, and the preparation and printing
of a blue sky memoranda, (vii) counsel to the Company, (viii) the transfer agent
for the Securities and (ix) the Accountants.
(h) If this Underwriting Agreement shall be terminated by the
Underwriters pursuant to its terms or if for any reason the Company shall be
unable to perform its obligations hereunder, the Company will reimburse the
Underwriters for all out-of-pocket expenses
11
(including the fees, disbursements and other charges of Underwriters' counsel)
reasonably incurred by the Underwriters in connection herewith.
(i) The Company will not at any time, directly or indirectly, take
any action designed to, or which might reasonably be expected, to cause or
result in, or which has constituted or which might reasonably be expected to
constitute, the stabilization or manipulation of the price of the Series B
Preferred Stock to facilitate the sale or resale of any of the Securities.
(j) The Company will apply the net proceeds from the sale of the
Securities as set forth under the caption "Use of Proceeds" in the Prospectus
Supplement.
(k) The Company presently intends to continue to qualify as (and
elect to qualify as) a "real estate investment trust" under the Code and,
subject to a contrary determination by its Board of Directors, shall use its
best efforts to continue to meet the requirements to qualify as a "real estate
investment trust."
(l) On or before completion of this offering, the Company shall
make all filings required under applicable securities laws and by the NYSE.
(m) For a period of 90 days after the date of the Prospectus
Supplement (the "Lock-Up Period"), the Company will not, directly or indirectly,
(1) offer, pledge, sell, or contract to sell any shares of Preferred Stock, (2)
sell any option or contract to sell any shares of Preferred Stock, (3) purchase
any option or contract to sell any shares of Preferred Stock, (4) grant any
option, right or warrant to purchase any shares of Preferred Stock, (5) enter
into any swap or other agreement that transfers, in whole or in part, the
economic consequence of ownership of any shares of Preferred Stock whether any
such swap or transaction is to be settled by delivery of shares or other
securities, in cash or otherwise, (6) take any of the foregoing actions with
respect to any securities convertible into or exchangeable or exercisable for
shares of Preferred Stock, or (7) publicly disclose the intention to take any of
the foregoing actions, without the prior written consent of Banc of America
Securities LLC, except issuances of shares of Preferred Stock in connection with
any acquisitions, joint ventures or similar arrangements, so long as the
recipients of those shares agree not to sell or transfer those shares in a
public market transaction during the Lock-Up Period.
5. Conditions of Underwriters' Obligations. The Underwriters' obligations
to purchase and pay for the Securities as provided herein shall be subject to
the accuracy, as of the date hereof and as of the Closing Date (as if made at
the Closing Date), of the representations and warranties of the Company herein,
to the performance by the Company of their obligations hereunder and to the
following additional conditions:
(a) The Registration Statement shall have been declared effective
under the Act; the Prospectus Supplement shall have been filed as required by
Section 2(a) hereof; and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for that purpose
shall have been instituted or, to the knowledge of the Company, threatened by
the Commission, nor shall any state securities authority have suspended the
qualification or registration of the Securities for offering or sale in any
jurisdiction and any request of the Commission for additional information (to be
included in the Registration
12
Statement or the Prospectus or otherwise) shall have been complied with to the
reasonable satisfaction of Banc of America Securities LLC and Underwriters'
counsel.
(b) Banc of America Securities LLC shall not have advised the
Company that the Registration Statement or any amendment thereto contains an
untrue statement of fact that in the opinion of Banc of America Securities LLC
or Underwriters' counsel is material or omits to state a fact that in the
opinion of Banc of America Securities LLC or Underwriters' counsel is material,
and is required to be stated therein or is necessary to make the statements
therein not misleading, or that the Prospectus, or any amendment or supplement
thereto, contains an untrue statement of fact that in the opinion of Banc of
America Securities LLC or Underwriters' counsel is material or omits to state a
fact that in the opinion of Banc of America Securities LLC or Underwriters'
counsel is material, and is necessary in light of the circumstance under which
they were made, to make the statements therein not misleading.
(c) Except as contemplated in the Prospectus Supplement,
subsequent to the respective dates as of which information is included or
incorporated by reference in the Registration Statement and the Prospectus,
there shall not have been any adverse change, or any development involving a
prospective adverse change, in the condition (financial or other), business,
prospects, net worth or results of operations of the Company or the Subsidiaries
or any adverse change in the rating assigned to any securities of the Company,
that, in the judgment of Banc of America Securities LLC, makes it impractical or
inadvisable to offer or deliver the Securities on the terms and in the manner
contemplated in the Prospectus.
(d) The Articles of Amendment shall have been filed with the
Georgia Secretary of State and become effective.
(e) The Underwriters shall have received the opinion of King &
Spalding LLP, counsel for the Company (upon which Hunton & Xxxxxxxx LLP may
rely) dated the Closing Date, in the form of the attached Exhibit A.
(f) The Underwriters shall have received the opinion of Deloitte
Tax LLP, as tax advisor to the Company, to the effect that (1) for its taxable
year which began January 1, 1999 through the taxable year ending December 31,
2003, the Company has continuously been organized and operated in conformity
with the requirements for qualification as a "real estate investment trust"
under the Code, and (2) the Company's current and proposed method of operation
will permit it to continue to meet the requirements for taxation as a "real
estate investment trust" under the Code for its 2004 taxable years and
thereafter.
(g) The Underwriters shall have received from Hunton & Xxxxxxxx
LLP, Underwriters' counsel, such opinion or opinions, dated the Closing Date,
with respect to the organization of the Company, the validity of the Securities,
the Registration Statement, the Prospectus and other related matters as the
Underwriters reasonably may request, and such counsel shall have received such
papers and information as they request to enable them to pass upon such matters.
(h) At the time of execution of this Underwriting Agreement and at
the Closing Date, the Underwriters shall have received a "comfort letter," dated
the date of delivery thereof, from
13
Deloitte & Touche LLP, the independent public accountants of the Company, in the
form previously agreed to by Banc of America Securities LLC
(i) The Underwriters shall have received from the Company a
certificate, signed by the President or a Vice President and by the principal
financial or accounting officer of the Company, dated the Closing Date, to the
effect that:
(i) The representations and warranties of the Company in
this Underwriting Agreement are true and correct in all material respects, as if
made at and as of the Closing Date, and the Company has complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the
Registration Statement or the use of any Prospectus has been issued, and no
proceeding for that purpose has been instituted or to the knowledge of the
Company is threatened by the Commission nor has any state securities authority
suspended the qualification or registration of the Securities for offering or
sale in any jurisdiction;
(iii) Since the effective date of the Registration
Statement, there has occurred no event required to be set forth in an amendment
or supplement to the Registration Statement or Prospectus that has not been so
set forth, and there has been no document required to be filed under the
Exchange Act and the Exchange Act Rules and Regulations of the Commission
thereunder that upon such filing would be deemed to be incorporated by reference
in the Prospectus that has not been so filed; and
(iv) Except as disclosed in the Prospectus, since the date
of the most recent financial statements of the Company contained or incorporated
by reference in the Registration Statement and the Prospectus there has been no
event resulting in or reasonably expected to result in a Material Adverse
Effect.
(j) Prior to the Closing Date, the Securities shall have been duly
authorized for listing by the NYSE upon official notice of issuance.
(k) All such opinions, certificates, letters and other documents
will be in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to Banc of America Securities LLC and
Underwriter's counsel. The Company will furnish the Underwriters with such
conformed copies of such opinions, certificates, letters and other documents as
the Underwriters shall reasonably request and the Company shall furnish to the
Underwriters such further certificates and documents as Banc of America
Securities LLC shall have reasonably requested.
6. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, their respective directors, officers, employees and agents and each
person, if any, who controls them within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
liabilities, expenses and damages (including, but not limited to, any and all
investigative, legal and other expenses reasonably incurred in connection with,
and any
14
and all amounts paid in settlement of, any action, suit or proceeding between
any of the indemnified parties and any indemnifying parties or between any
indemnified party and any third party, to which the Underwriter, or any such
person, may become subject under the Act, the Exchange Act or other federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, liabilities, expenses or damages arise out of or are based on
(i) any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus supplement, the Registration Statement
or the Prospectus or any amendment or supplement to the Registration Statement
or the Prospectus or in any documents filed under the Exchange Act and deemed to
be incorporated by reference into the Prospectus, or in any application or other
document executed by or on behalf of the Company based on written information
furnished by or on behalf of the Company filed in any jurisdiction in order to
qualify the Securities under the securities or blue sky laws thereof or filed
with the Commission or (ii) the omission or alleged omission to state in such
document a material fact required to be stated in it or necessary to make the
statements in it not misleading; provided, that, with respect to any Preliminary
Prospectus, the Company will not be liable for any loss, claim, liability,
expense or damage of any person arising out of or based upon any untrue
statement or omission, or alleged untrue statement or omission, of a material
fact contained in a Preliminary Prospectus to the extent that such loss, claim,
liability, expense or damage was caused by the failure of any Underwriter to
deliver a copy of the Prospectus in its final form to such person at or prior to
the confirmation of the sale of the Securities to such person, and such delivery
is required by the Securities Act and the untrue statement or omission, or
alleged untrue statement or omission, of a material fact contained in the
Preliminary Prospectus was corrected in such final Prospectus; provided,
further, that the Company will not be liable to the extent that such loss,
claim, liability, expense or damage arises from or based on an untrue statement
or omission or alleged untrue statement or omission made in reliance on and in
conformity with information relating to the Underwriters furnished in writing to
the Company by Banc of America Securities LLC expressly for inclusion in the
Registration Statement or the Prospectus. The Underwriters confirm to the
Company and the Company acknowledges that only the following information
appearing in the Prospectus with respect to the public offering of the
Securities has been furnished to the Company by the Underwriters for use in the
Preliminary Prospectus Supplement and the Prospectus Supplement: the information
in the paragraphs entitled "Dealers' Compensation" and "Stabilization and Other
Transactions" under the caption "Underwriting" in the Prospectus Supplement.
This indemnity agreement will be in addition to any liability that the Company
might otherwise have.
(b) Each Underwriter will, severally and not jointly, indemnify
and hold harmless the Company, each person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
each director of the Company and each officer of the Company who signs the
Registration Statement to the same extent as the foregoing indemnity from the
Company to such Underwriter, but only insofar as losses, claims, liabilities,
expenses or damages arise out of or are based on any untrue statement or
omission or alleged untrue statement or omission made in reliance on and in
conformity with information relating to such Underwriter furnished in writing to
the Company by Banc of America Securities LLC expressly for use in the
Registration Statement or the Prospectus as set forth in the second to last
sentence of Section 6(a) above. This indemnity will be in addition to any
liability that the Underwriters might otherwise have.
15
(c) Any party that proposes to assert the right to be indemnified
under this Section 6 will, promptly after receipt of notice of commencement of
any action against such party in respect of which a claim is to be made against
an indemnifying party or parties under this Section 6, notify each such
indemnifying party of the commencement of such action, enclosing a copy of all
papers served, but the omission so to notify such indemnifying party will not
relieve it from any liability that it may have to any indemnified party under
the foregoing provisions of this Section 6 unless, and only to the extent that,
such omission results in the forfeiture of substantive rights or defenses by the
indemnifying party. The indemnifying party will be entitled to assume the
defense of the action, with counsel satisfactory to the indemnified party, and
thereafter the indemnifying party will not be liable to the indemnified party
for any legal or other expenses except as provided below and except for the
reasonable costs of investigation subsequently incurred by the indemnified party
in connection with the defense. The indemnified party will have the right to
employ its own counsel in any such action, but the fees, expenses and other
charges of such counsel will be at the expense of such indemnified party unless
(1) the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) the indemnified party has reasonably
concluded (based on advice of counsel) that there may be legal defenses
available to it or other indemnified parties that are different from or in
addition to those available to the indemnifying party, (3) a conflict or
potential conflict exists (based on advice of counsel to the indemnified party)
between the indemnified party and the indemnifying party (in which case the
indemnifying party will not have the right to direct the defense of such action
on behalf of the indemnified party) or (4) the indemnifying party has not in
fact employed counsel to assume the defense of such action within a reasonable
time after receiving notice of the commencement of the action, in each of which
cases the reasonable fees, disbursements and other charges of counsel will be at
the expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one additional firm admitted to
practice in such jurisdiction at any one time for all such indemnified party or
parties. All such fees, disbursements and other charges will be reimbursed by
the indemnifying party promptly as they are incurred. An indemnifying party will
not be liable for any settlement of any action or claim effected without its
written consent (which consent will not be unreasonably withheld); provided
however, no indemnifying party shall, without the prior written consent of each
indemnified party, settle or compromise or consent to the entry of any judgment
in any pending or threatened claim, action or proceeding relating to the matters
contemplated by this Section 6 (whether or not any indemnified party is a party
thereto), unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising or
that may arise out of such claim, action or proceeding.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 6 is applicable in accordance with its terms but for
any reason is held to be unavailable from the Company or any Underwriter, the
Company and the Underwriters will contribute to the total losses, claims,
liabilities, expenses and damages (including any investigative, legal and other
expenses reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted) to which
the Company and the Underwriters may be subject in such proportion as shall be
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other. The relative benefits received by the
16
Company on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the final Prospectus Supplement. If, but
only if, the allocation provided by the foregoing sentence is not permitted by
applicable law, the allocation of contribution shall be made in such proportion
as is appropriate to reflect not only the relative benefits referred to in the
foregoing sentence but also the relative fault of the Company on the one hand,
and the Underwriters, on the other, with respect to the statements or omissions
which resulted in such loss, claim, liability, expense or damage, or action in
respect thereof, as well as any other relevant equitable considerations with
respect to such offering. Such 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 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 and the Underwriters agree that it would not
be just and equitable if contributions pursuant to this Section 6(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,
liability, expense or damage, or action in respect thereof, referred to above in
this Section 6(d) shall be deemed to include, for purpose of this Section 6(d),
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. Each
Underwriter's obligation to contribute pursuant to this paragraph are several in
proportion to the respective number of Securities set forth opposite their names
on the attached Schedule B. Notwithstanding the provisions of this Section 6(d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by it and
distributed to the public was offered to the public exceeds the amount of any
damages which such Underwriter has otherwise paid, and no person found guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
will be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 6(d), any person who
controls a party to this Underwriting Agreement within the meaning of the Act
will have the same rights to contribution as that party, and each officer of the
Company who signed the Registration Statement will have the same rights to
contribution as the Company, subject in each case to the provisions hereof. Any
party entitled to contribution, promptly after receipt of notice of commencement
of any action against such party in respect of which a claim for contribution
may be made under this Section 6(d), will notify any such party or parties from
whom contribution may be sought, but the omission so to notify will not relieve
the party or parties from whom contribution may be sought from any other
obligation it or they may have under this Section 6(d). Except for a settlement
entered into pursuant to the last sentence of Section 6(c) hereof, no party will
be liable for contribution with respect to any action or claim settled without
its written consent (which consent will not be unreasonably withheld).
(e) The indemnity and contribution agreements contained in this
Section 6 and the representations and warranties of the Company contained in
this Underwriting Agreement shall remain operative and in full force and effect
regardless of (i) any investigation made by or on behalf of the Underwriters,
(ii) acceptance of the Securities and payment therefor or (iii) any termination
of this Underwriting Agreement.
17
7. Representations and Agreements to Survive Delivery. All
representations, warranties and agreements of the Company contained herein or in
certificates delivered pursuant hereto, and the Underwriters' agreements
contained in Section 6 hereof, shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of the Underwriters
or any controlling persons, or the Company or any of its officers, directors or
any controlling persons, and shall survive delivery of and payment for the
Securities hereunder.
8. Substitution of Underwriters.
(a) If any Underwriter shall fail to take up and pay for the
aggregate number of Securities agreed by such Underwriter to be purchased
hereunder, and the aggregate number of Securities not purchased does not
aggregate more than 10% of the total number of Securities that the Underwriters
are obligated to purchase hereunder at the Closing Date, the remaining
Underwriters shall be obligated to take up and pay for the Securities that the
defaulting Underwriter agreed but failed to purchase.
(b) If any Underwriter shall fail to take up and pay for the
aggregate number of Securities agreed by such Underwriter to be purchased
hereunder, and the number of Securities not purchased aggregates more than 10%
of the total number of Securities that the Underwriters are obligated to
purchase hereunder at the Closing Date, and arrangements satisfactory to the
non-defaulting Underwriter and the Company for the purchase of such Securities
by other persons are not made within 36 hours thereafter, this Agreement shall
terminate. In the event of any such termination, the Company shall not be under
any liability to any Underwriter with respect to Securities not purchased by
reason of such termination (except to the extent provided in Section 4(h),
regarding payment of expenses, and Section 6, regarding indemnification and
contribution, hereof) nor shall any Underwriter (other than an Underwriter who
failed, otherwise than for a reason permitted under this Agreement, to purchase
the number of Securities agreed by such Underwriter to be purchased hereunder)
be under any liability to the Company with respect to such Securities (except to
the extent provided in Section 6 hereof).
9. Termination. The Underwriters shall have the right, pursuant to notice
given by Banc of America Securities LLC as hereinafter specified at any time at
or prior to the Closing Date, to terminate this Underwriting Agreement if (i)
the Company shall have failed, refused or been unable, at or prior to the
Closing Date, to perform any agreement on its part to be performed hereunder,
(ii) any other condition of the Underwriters' obligations hereunder is not
fulfilled when due, (iii) trading on the NYSE shall have been wholly suspended,
(iv) there shall have been any material suspension or material limitation of
trading in securities generally on the New York Stock Exchange, or any setting
of minimum prices for trading on such exchange, or any suspension of trading of
any securities of the Company on any exchange or in the over-the-counter market,
(v) a banking moratorium shall have been declared by federal or New York
authorities or a material disruption in commercial banking or securities
settlement or clearance services has occurred, (vi) an outbreak or escalation of
hostilities in which the United States is involved, a declaration of war by
Congress, any other substantial national or international calamity or crisis or
(vii) any other event or occurrence of a similar character shall have occurred
since the execution of this Underwriting Agreement that, in the sole judgment of
Banc of America Securities LLC, makes it impractical or inadvisable to proceed
with the completion of the sale of and payment for the Securities. Any such
termination shall be without liability of any
18
party to any other party with respect to Securities not purchased by reason of
such termination except that the provisions of Section 4(g) and Section 6 hereof
shall at all times be effective. If Banc of America Securities LLC elects to
terminate this Underwriting Agreement as provided in this Section, the Company
shall be notified promptly by telephone or telecopy, confirmed by letter.
10. Notices. All notices or communications hereunder shall be in writing
and if sent to the Underwriters shall be mailed, delivered or telecopied and
confirmed to the Underwriters c/o Banc of America Securities LLC, Hearst Tower,
000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx, 00000, attention: Xxxxxxx X.
Xxxxxxxx (with copy to Hunton & Xxxxxxxx LLP, Riverfront Plaza, East Tower, 000
X. Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: Xxxxxxx X. Xxxxx,
Esq.,), or if sent to the Company, shall be mailed, delivered or telecopied and
confirmed to Cousins Properties Incorporated, 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxx
0000, Xxxxxxx, XX, 00000, Attention: Corporate Secretary, (with copy to King &
Spalding LLP, 000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, XX, 00000, Attention: Xxxx X.
Xxxxxx, Esq.). Any party to this Underwriting Agreement may change such address
for notices by sending to the other party to this Underwriting Agreement written
notice of a new address for such purpose.
11. Parties. This Underwriting Agreement shall inure to the benefit of, and be
binding upon, the Company and the Underwriters and their respective successors
and the controlling persons, officers, directors, employees and representatives
referred to in Section 6 hereof, and no other person will have any right or
obligation hereunder.
12. Applicable Law. This Underwriting Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
[Signatures appear on following page.]
19
If the foregoing correctly sets forth the understanding between the
Company and the Underwriters, please so indicate in the space provided below for
that purpose, whereupon this letter shall constitute a binding agreement between
the Company and the Underwriters.
Very truly yours,
COUSINS PROPERTIES INCORPORATED
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive V.P. & CFO
ACCEPTED as of the date first above written
BANC OF AMERICA SECURITIES LLC
as Representative of the several Underwriters
By: /s/ Xxxx Xxxxx
-----------------------------------------
Name: Xxxx Xxxxx
Title: Principal
WACHOVIA CAPITAL MARKETS, LLC
as Representative of the several Underwriters
By: /s/ Xxxxxx Xxx
-----------------------------------------
Name: Xxxxxx Xxx
Title: Director
20
