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EXHIBIT 1.1
CHATEAU COMMUNITIES, INC.
CP LIMITED PARTNERSHIP
UNDERWRITING AGREEMENT
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Table of Contents
SECTION 1. Representations and Warranties................................. 4
(a) Representations and Warranties by the Company and the
Operating Partnership.......................................... 4
(1) Compliance with Registration Requirements................. 5
(2) Incorporated Documents.................................... 5
(3) Independent Accountants................................... 5
(4) Financial Statements...................................... 6
(5) Pro Forma Financial Statements............................ 6
(6) No Material Adverse Change in Business.................... 6
(7) Good Standing of the Company.............................. 7
(8) Operating Partnership and Subsidiaries.................... 7
(9) Capitalization............................................ 8
(10) Units..................................................... 9
(11) Authorization of this Agreement and Terms
Agreement by the Company................................. 9
(12) Authorization of this Agreement and the Terms
Agreement by the Operating Partnership................... 9
(13) Authorization of Common Stock............................. 9
(14) Authorization of Preferred Stock.......................... 9
(15) Authorization of Depositary Shares........................10
(16) Authorization of Warrants.................................10
(17) Authorization of Debt Securities.......................... 10
(18) Authorization of the Underlying Securities................ 11
(19) Authorization of the Deposit Agreement and the
Warrant Agreement.........................................11
(20) Authorization of the Indenture............................11
(21) Authorization of the Remarketing Agreement................ 12
(22) Descriptions of the Underwritten Securities,
Underlying Securities, Indenture, Remarketing
Agreement, Deposit Agreement and Warrant
Agreement................................................ 12
(23) Absence of Defaults and Conflicts......................... 12
(24) REIT Qualification........................................ 13
(25) Absence of Proceedings.................................... 13
(26) Accuracy of Exhibits...................................... 14
(27) Absence of Further Requirements........................... 14
(28) Possession of Intellectual Property....................... 14
(29) Possession of Licenses and Permits........................ 14
(30) Registration Rights Agreements............................ 15
(31) Title to Property......................................... 15
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(32) Title Insurance............................................16
(33) Investment Company Act.................................... 16
(34) Environmental Laws........................................ 16
(b) Officers' Certificates.......................................... 17
SECTION 2. Sale and Delivery to Underwriters; Closing...................... 17
(a) Underwritten Securities......................................... 17
(b) Option Underwritten Securities.................................. 17
(c) Payment......................................................... 18
(d) Denominations; Registration..................................... 18
SECTION 3. Covenants of the Company and the Operating
Partnership.................................................... 19
SECTION 4. Payment of Expenses............................................. 22
(a) Expenses......................................................... 22
(b) Termination of Agreement......................................... 23
SECTION 5. Conditions of Underwriters' Obligations......................... 23
(a) Effectiveness of Registration Statement......................... 23
(b) Opinion of Counsel for the Company and the
Operating Partnership........................................... 23
(c) Opinion of Counsel for the Underwriters......................... 23
(d) Additional Opinion.............................................. 23
(e) Officers' Certificate........................................... 24
(f) Accountant's Comfort Letter..................................... 25
(g) Bring-down Comfort Letter....................................... 25
(h) Comfort Letter for Acquisitions................................. 25
(i) Ratings......................................................... 25
(j) Approval of Listing............................................. 26
(k) No Objection.................................................... 26
(l) Lock-up Agreements.............................................. 26
(m) Over-Allotment Option........................................... 26
(n) Additional Documents............................................ 27
(o) Termination of Terms Agreement.................................. 27
SECTION 6. Indemnification................................................. 27
(a) Indemnification of Underwriters................................. 27
(b) Indemnification of Company, Operating Partnership,
Directors and Officers......................................... 28
(c) Actions against Parties; Notification........................... 29
SECTION 7. Contribution.................................................... 29
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery............................................... 31
SECTION 9. Termination..................................................... 31
(a) Underwriting Agreement.......................................... 31
(b) Terms Agreement................................................. 31
(c) Liabilities..................................................... 32
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SECTION 10. Default by One or More of the Underwriters..................... 32
SECTION 11. Notices........................................................ 33
SECTION 12. Parties........................................................ 33
SECTION 13. Governing Law And Time......................................... 33
SECTION 14. Effect of Headings............................................. 33
EXHIBIT A: Terms Agreement..........................................A-1
EXHIBIT B: Form of Opinion of Counsel for the Company
and the Operating Partnership to be Delivered
Pursuant to Section 5(b).................................B-1
EXHIBIT C: Form of Accountant's Comfort Letter Pursuant
to Section 5(f)..........................................C-1
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CHATEAU COMMUNITIES, INC.
(a Maryland corporation)
CP LIMITED PARTNERSHIP
(a Maryland limited partnership)
Common Stock,
Preferred Stock,
Depositary Shares Representing Preferred Stock,
Warrants
and
Debt Securities
UNDERWRITING AGREEMENT
December 18, 1997
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Chateau Communities, Inc., a Maryland corporation (the "Company"),
proposes to issue and sell up to $200,000,000 aggregate initial public offering
price of its shares of common stock, par value $.01 per share (the "Common
Stock"), shares of preferred stock, par value $.01 per share (the "Preferred
Stock"), depositary shares representing fractional interests in the Preferred
Stock (the "Depositary Shares") or warrants (the "Warrants") to purchase Common
Stock, and CP Limited Partnership, a Maryland limited partnership (the
"Operating Partnership"), proposes to issue and sell up to $120,000,000
aggregate initial public offering price of senior or subordinated debt
securities (the "Debt Securities"), or any combination thereof, from time to
time, in or pursuant to one or more offerings on terms to be determined at the
time of sale.
The Preferred Stock will be issued in one or more series and each series
of Preferred Stock may vary, as applicable, as to the title, specific number of
shares, rank, stated value, liquidation preference, dividend rate or rates (or
method of calculation), dividend payment dates,
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redemption provisions, sinking fund requirements, conversion provisions (and
terms of the related Underlying Securities (as defined below)) and any other
variable terms as set forth in the applicable articles supplementary of the
Company (the "Articles Supplementary") relating to such series of Preferred
Stock. If shares of the Preferred Stock are to be offered in the form of
Depositary Shares, the shares of Preferred Stock will, when issued, be deposited
by the Company against delivery of depositary receipts (the "Depositary
Receipts") to be issued under a deposit agreement (the "Deposit Agreement"), to
be entered into among the Company, a depositary institution (the "Depositary")
and the holders from time to time of the Depositary Receipts issued thereunder.
The Depositary Receipts will evidence the Depositary Shares and each Depositary
Share will represent a fraction of a share of Preferred Stock. The Preferred
Stock, together, if applicable, with the Depositary Shares are hereinafter
referred to as the "Preferred Stock".
The Warrants are to be issued under warrant agreements (each, a "Warrant
Agreement"), between the Company and a bank or trust company, as warrant agent
(the "Warrant Agent"). The Warrants may have varying designations, expiration
dates, selling prices, redemption terms, if any, exchange terms, if any,
conversion terms and other specific terms as set forth in the applicable Terms
Agreement relating thereto.
The Debt Securities will be issued in one or more series under an
indenture (the "Indenture") between the Operating Partnership and The First
National Bank of Chicago, as trustee (the "Trustee"). Each series of Debt
Securities may vary, as applicable, as to title, aggregate principal amount,
rank, interest rate or formula and timing of payments thereof, stated maturity
date, redemption and/or repayment provisions, sinking fund requirements,
conversion provisions (and terms of the related Underlying Securities) and any
other variable terms established by or pursuant to the Indenture.
As used herein, "Securities" shall mean the Common Stock, Preferred Stock,
Depositary Shares, Warrants, Debt Securities, or any combination thereof,
initially issuable by the Company or the Operating Partnership and "Underlying
Securities" shall mean the Common Stock issuable upon exercise of the Warrants
or conversion of the Preferred Stock or the Depositary Shares or the Preferred
Stock issuable upon conversion of the Depositary Shares, as applicable.
Whenever the Company or the Operating Partnership determines to make an
offering of Securities through Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx"), or through an underwriting
syndicate managed by Xxxxxxx Xxxxx, the Company will enter into an agreement
(each, a "Terms Agreement") providing for the sale of such Securities to, and
the purchase and offering thereof by, Xxxxxxx Xxxxx and such other underwriters,
if any, selected by Xxxxxxx Xxxxx (the "Underwriters", which term shall include
Xxxxxxx Xxxxx, whether acting as sole Underwriter or as a member of an
underwriting syndicate, as well as any Underwriter substituted pursuant to
Section 10 hereof). The Terms Agreement relating to the offering of Securities
shall specify the number or aggregate principal amount, as the case may be, of
Securities to be initially issued (the "Initial Underwritten Securities"), the
name of each Underwriter participating in such offering (subject to substitution
as provided in
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Section 10 hereof) and the name of any Underwriter other xxxx Xxxxxxx Xxxxx
acting as co-manager in connection with such offering, the number or aggregate
principal amount, as the case may be, of Initial Underwritten Securities which
each such Underwriter severally agrees to purchase, whether such offering is on
a fixed or variable price basis and, if on a fixed price basis, the initial
offering price, the price at which the Initial Underwritten Securities are to be
purchased by the Underwriters, the form, time, date and place of delivery and
payment of the Initial Underwritten Securities and any other material variable
terms of the Initial Underwritten Securities, as well as the material variable
terms of any related Underlying Securities. In addition, if applicable, such
Terms Agreement shall specify whether the Company or the Operating Partnership
has agreed to grant to the Underwriters an option to purchase additional
Securities to cover over-allotments, if any, and the number or aggregate
principal amount, as the case may be, of Securities subject to such option (the
"Option Underwritten Securities"). As used herein, the term "Underwritten
Securities" shall include the Initial Underwritten Securities and all or any
portion of any Option Underwritten Securities. The Terms Agreement, which shall
be substantially in the form of Exhibit A hereto, may take the form of an
exchange of any standard form of written telecommunication between the Company
and the Operating Partnership and Xxxxxxx Xxxxx, acting for itself and, if
applicable, as representative of any other Underwriters. Each offering of
Underwritten Securities through Xxxxxxx Xxxxx as sole Underwriter or through an
underwriting syndicate managed by Xxxxxxx Xxxxx will be governed by this
Agreement, as supplemented by the applicable Terms Agreement. This Agreement, as
supplemented by the applicable Terms Agreement, also may relate to an offering
of Securities managed by such other Underwriters as may be specified in the
Terms Agreement.
The Company and the Operating Partnership have filed with the Securities
and Exchange Commission (the "Commission") a registration statement on Form S-3
(Nos. 333-4544 and 333- 4544-01) for the registration of the Securities and the
Underlying Securities under the Securities Act of 1933, as amended (the "1933
Act"), and the offering thereof from time to time in accordance with Rule 415 of
the rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"), and the Company and the Operating Partnership have filed such
post-effective amendments thereto as may be required prior to the execution of
the applicable Terms Agreement. Such registration statement (as so amended, if
applicable) has been declared effective by the Commission and each Indenture has
been duly qualified under the Trust Indenture Act of 1939, as amended (the "1939
Act"), and the rules and regulations of the Commission under the 1939 Act (the
"1939 Act Regulations"). Such registration statement (as so amended, if
applicable), including the information, if any, deemed to be a part thereof
pursuant to Rule 430A(b) of the 1933 Act Regulations (the "Rule 430A
Information") or Rule 434(d) of the 1933 Act Regulations (the "Rule 434
Information"), is referred to herein as the "Registration Statement"; and the
final prospectus and the final prospectus supplement relating to the offering of
the Underwritten Securities, in the form first furnished to the Underwriters by
the Company or the Operating Partnership, as the case may be, for use in
connection with the offering of the Underwritten Securities, are collectively
referred to herein as the "Prospectus"; provided, however, that all references
to the "Registration Statement" and the "Prospectus" shall also be deemed to
include all documents incorporated therein by reference pursuant to the
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Securities Exchange Act of 1934, as amended (the "1934 Act"), prior to the
execution of the applicable Terms Agreement; provided, further, that if the
Company and the Operating Partnership file a registration statement with the
Commission pursuant to Rule 462(b) of the 1933 Act Regulations (the "Rule 462(b)
Registration Statement"), then, after such filing, all references to
"Registration Statement" shall also be deemed to include the Rule 462(b)
Registration Statement; and provided, further, that if the Company or the
Operating Partnership, as the case may be, elects to rely upon Rule 434 of the
1933 Act Regulations, then all references to "Prospectus" shall also be deemed
to include the final or preliminary prospectus and the applicable term sheet or
abbreviated term sheet (the "Term Sheet"), as the case may be, in the form first
furnished to the Underwriters by the Company in reliance upon Rule 434 of the
1933 Act Regulations, and all references in this Agreement to the date of the
Prospectus shall mean the date of the Term Sheet. A "preliminary prospectus"
shall be deemed to refer to any prospectus used before the Registration
Statement became effective and any prospectus that omitted, as applicable, the
Rule 430A Information, the Rule 434 Information or other information to be
included upon pricing in a form of prospectus filed with the Commission pursuant
to Rule 424(b) of the 1933 Act Regulations, that was used after such
effectiveness and prior to the execution and delivery of the applicable Terms
Agreement. For purposes of this Agreement, all references to the Registration
Statement, Prospectus, Term Sheet or preliminary prospectus or to any amendment
or supplement to any of the foregoing shall be deemed to include any copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system.
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" (or other
references of like import) in the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to mean and include all such financial
statements and schedules and other information which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be; and all references in this Agreement to amendments or
supplements to the Registration Statement, Prospectus or preliminary prospectus
shall be deemed to mean and include the filing of any document under the 1934
Act which is incorporated by reference in the Registration Statement, Prospectus
or preliminary prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company and the Operating
Partnership. The Company and the Operating Partnership, jointly and severally,
represent and warrant to Xxxxxxx Xxxxx, as of the date hereof, and to each
Underwriter named in the applicable Terms Agreement, as of the date thereof, as
of the Closing Time (as defined below) and, if applicable, as of each Date of
Delivery (as defined below) (in each case, a "Representation Date"), as follows:
(1) Compliance with Registration Requirements. The Registration
Statement and the Prospectus, at the time a preliminary prospectus was
first provided for use to the Underwriters and at each time thereafter on
which any amendment to the Registration
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Statement becomes effective and at each time thereafter on which each of
the Company and the Operating Partnership filed an Annual Report on Form
10-K with the Commission, complied, and as of each Representation Date
will comply, in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations; the Registration Statement, at the time
the Registration Statement became effective and at each time thereafter on
which each of the Company and the Operating Partnership filed an Annual
Report on Form 10-K with the Commission, did not, and at each time
thereafter on which any amendment to the Registration Statement becomes
effective or each of the Company or the Operating Partnership files an
Annual Report on Form 10-K with the Commission and as of each
Representation Date, will not, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and the
Prospectus, as of the date hereof, does not, and as of each Representation
Date will not, include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided, however, that the representations and warranties in
this subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter through Xxxxxxx Xxxxx expressly for use in the Registration
Statement or Prospectus.
(2) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the Prospectus
(the "Incorporated Documents"), at the time they were or hereafter are
filed with the Commission, complied and will comply in all material
respects with the requirements of the 1934 Act and the rules and
regulations of the Commission under the 1934 Act (the "1934 Act
Regulations"), and, when read together with the other information in the
Prospectus, at the time the Registration Statement became effective and as
of the applicable Representation Date or Closing Time (as defined herein)
or during the period specified in Section 3(f) hereof, did not and will
not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading.
(3) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included or incorporated by
reference in the Registration Statement and the Prospectus are independent
public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(4) Financial Statements. The historical consolidated financial
statements of each of the Operating Partnership, the Company and ROC
Communities, Inc. ("ROC Communities"), including the related notes and
schedules thereto, included or incorporated by reference in the
Registration Statement and the Prospectus present fairly
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the financial position of the Operating Partnership, the Company and ROC
Communities, respectively, as at the dates indicated and the results of
operations for the periods specified. If applicable, the historical
financial information including the notes thereto for properties or other
assets included in or incorporated by reference into the Registration
Statement and Prospectus present fairly the stated financial information
for such specific property or asset. Except as otherwise stated in the
Registration Statement, said historical consolidated financial statements
of the Operating Partnership, the Company and ROC Communities, and, if
applicable, the specific properties or other assets, have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved, and all adjustments
necessary for a fair presentation of results for such periods have been
made. The supporting schedules included or incorporated by reference in
the Registration Statement and the Prospectus present fairly the
information required to be stated therein; and the selected financial data
(both historical and pro forma) included or incorporated by reference in
the Registration Statement and the Prospectus present fairly the
information shown therein and have been compiled on a basis consistent
with the related financial statements presented therein to the extent
derived from such financial statements.
(5) Pro Forma Financial Statements. The unaudited pro forma
condensed consolidated financial statements included or incorporated by
reference in the Registration Statement and the Prospectus present fairly
the pro forma financial position of the Company and the Operating
Partnership as of the dates indicated and the results of their operations
for the periods specified; and such unaudited pro forma financial
statements have been prepared in accordance with generally accepted
accounting principles applied on a basis substantially consistent with the
audited financial statements of the Company and the Operating Partnership
included or incorporated by reference in the Registration Statement and
the Prospectus, the assumptions on which such pro forma financial
statements have been prepared are reasonable and are set forth in the
notes thereto, and such pro forma financial statements have been prepared,
and the pro forma adjustments set forth therein have been applied, in
accordance with the applicable accounting requirements of the 1933 Act and
the 1933 Act Regulations, and such pro forma adjustments have been
properly applied to the historical amounts in the compilation of such
statements.
(6) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (a) there has been no
material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise or the Operating Partnership
and its subsidiaries considered as one enterprise, or any of the real
property or improvements thereon owned by the Company, the Operating
Partnership or any of their respective subsidiaries (each individually, a
"Property" and collectively, the "Properties"), whether or not arising in
the ordinary course of business, (b) no material casualty loss or
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material condemnation or other material adverse event with respect to any
of the Properties has occurred, (c) there have been no transactions
entered into or acquisitions by the Company, the Operating Partnership or
any of their respective subsidiaries, other than those in the ordinary
course of business or disclosed in the Prospectus, which are material with
respect to the Company and its subsidiaries considered as one enterprise
or the Operating Partnership and its subsidiaries considered as one
enterprise, and (d) except for regular quarterly dividends on the
Company's common stock, there has been no dividend or distribution of any
kind declared, paid or made by the Company or any of its subsidiaries on
any class of its capital stock or by the Operating Partnership or any of
its subsidiaries with respect to its partnership interests or any class of
its capital stock. As used in this Agreement, the term subsidiary as it
relates to the Operating Partnership includes any corporation, limited
liability company, limited or general partnership, joint venture or other
entity through which the Operating Partnership owns a controlling
interest, either directly or indirectly, in a Property.
(7) Good Standing of the Company. The Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Maryland, with corporate power and
authority to own, lease and operate its Properties and to conduct its
business as described in the Prospectus and to enter into and perform its
obligations under this Agreement and the Terms Agreement and the Company
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 or to be in
good standing would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise
or the Operating Partnership and its subsidiaries considered as one
enterprise or the Properties, collectively; and, except for the Operating
Partnership, the Windsor Corporation, a California corporation, and its
parent and other corporations that hold 1% or smaller interests in
subsidiary partnerships, the Company owns no material amounts of stock or
other beneficial interest in any corporation, limited liability company,
partnership, joint ventures or other business entity.
(8) Operating Partnership and Subsidiaries. The Amended and Restated
Agreement of Limited Partnership of the Operating Partnership (the
"Partnership Agreement") has been duly and validly authorized, executed
and delivered by the Company and is a valid and binding agreement,
enforceable against the Company 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. To the Company's knowledge, the
Partnership Agreement has been duly executed and delivered by the other
parties thereto and is a valid and binding agreement, enforceable against
such parties 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. The Operating Partnership
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and each of its "significant subsidiaries" (as such term is defined in
Rule 1-02 of Regulation S-X promulgated under the 0000 Xxx) (each, a
"Subsidiary" and collectively, the "Subsidiaries") has been duly formed
and is validly existing as a limited partnership, limited liability
company or corporation, as the case may be, in good standing under the
laws of its state of organization with partnership, limited liability
company or corporate power and authority, as the case may be, 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 and each of its Subsidiaries is duly qualified or registered
as a foreign partnership, limited liability company or corporation, as the
case may be, 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, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise or the Operating Partnership and its
subsidiaries considered as one enterprise or the Properties, collectively.
The Company owns, directly and through ROC Communities (the other general
partner of the Operating Partnership), an approximate 90% general partner
interest in the Operating Partnership. Except as otherwise stated in the
Prospectus, all of the issued and outstanding capital stock or other
ownership interests in each Subsidiary have been duly authorized and
validly issued, are fully paid and non-assessable and are owned by the
Company or the Operating Partnership, directly or indirectly, free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim
or equity, except for security interests granted in respect of
indebtedness of the Company or the Operating Partnership or any of their
respective subsidiaries as described in the Prospectus and except for
security interests which would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company or any of its subsidiaries considered as
one enterprise or the Operating Partnership or any of its subsidiaries
considered as one enterprise or the Properties, collectively.
(9) Capitalization. The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus under
"Capitalization" (except for subsequent issuances, if any, pursuant to
reservations, agreements, employee benefit plans, dividend reinvestment
plans, employee and director stock option plans or upon the exercise of
options or convertible securities referred to in the Prospectus); and such
shares of capital stock have been duly authorized and validly issued and
are fully paid and non-assessable and are not subject to preemptive or
other similar rights. The Company has duly reserved a sufficient number of
shares of Common Stock for issuance upon exchange of outstanding units of
limited partner interest in the Operating Partnership (the "Units").
(10) Units. The issued and outstanding Units have been duly
authorized and validly issued by the Operating Partnership and are fully
paid and non-assessable. The Units
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have been sold in compliance with all applicable laws (including, without
limitation, federal and state securities laws).
(11) Authorization of this Agreement and Terms Agreement by the
Company. The Company has the requisite corporate power and authority to
enter into this Agreement, the applicable Terms Agreement and the Delayed
Delivery Contracts (as defined below), if any, and this Agreement has
been, and as of each Representation Date, the applicable Terms Agreement
and the Delayed Delivery Contracts, if any, will have been, duly
authorized, executed and delivered by the Company.
(12) Authorization of this Agreement and the Terms Agreement by the
Operating Partnership. The Operating Partnership has the requisite
partnership power and authority to enter into this Agreement and the
applicable Terms Agreement and this Agreement has been, and as of each
Representation Date, the applicable Terms Agreement will have been, duly
authorized, executed and delivered by the Operating Partnership.
(13) Authorization of Common Stock. If the Underwritten Securities
being sold pursuant to this Agreement and the applicable Terms Agreement
include Common Stock, such Underwritten Securities have been, or as of the
date of such Terms Agreement will have been, duly authorized for issuance
and sale pursuant to this Agreement and such Terms Agreement; and the
Common Stock, when issued and delivered by the Company pursuant to this
Agreement against payment of the consideration set forth in such Terms
Agreement or any Delayed Delivery Contract, will be validly issued, fully
paid and non-assessable and will not be subject to preemptive or other
similar rights. The form of stock certificate used to evidence the Common
Stock is in due and proper form and complies with all applicable legal
requirements.
(14) Authorization of Preferred Stock. If the Underwritten Securities
being sold pursuant to this Agreement and the applicable Terms Agreement
include Preferred Stock, such Underwritten Securities have been, or as of
the date of such Terms Agreement will have been, duly authorized by the
Company for issuance and sale pursuant to this Agreement and such Terms
Agreement. The Preferred Stock, when issued and delivered by the Company
pursuant to this Agreement against payment of the consideration therefor
specified in such Terms Agreement, will be validly issued, fully paid and
non-assessable and will not be subject to preemptive or other similar
rights of any securityholder of the Company. The applicable Articles
Supplementary will be in full force and effect prior to the Closing Time.
The form of stock certificate used to evidence the Preferred Stock will be
in due and proper form and will comply with all applicable legal
requirements.
(15) Authorization of Depositary Shares. If the Underwritten
Securities being sold pursuant to this Agreement and the applicable Terms
Agreement include Depositary Shares, such Depositary Shares and the
deposit of the Preferred Stock in accordance with the Deposit Agreement
have been, or as of the date of such Terms Agreement will have
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been, duly authorized by the Company for issuance and sale pursuant to
this Agreement and such Terms Agreement. The Depositary Shares, when
issued and delivered by the Company pursuant to this Agreement against
payment of the consideration therefor specified in such Terms Agreement,
will be validly issued, fully paid and non-assessable and will not be
subject to preemptive or other similar rights of any securityholder of the
Company. Upon deposit by the Company of any Preferred Stock represented by
Depositary Shares with the Depositary and the execution and delivery of
the Depositary Receipts evidencing such Depositary Shares pursuant to the
terms of the Deposit Agreement, the persons in whose names such Depositary
Receipts are registered will be entitled to the proportional rights,
preferences and limitations of the Preferred Stock represented by the
Depositary Shares evidenced by such Depositary Receipts and to such other
rights as are granted to such registered holder in such Deposit Agreement.
(16) Authorization of Warrants. If the Underwritten Securities being
sold pursuant to this Agreement and the applicable Terms Agreement include
Warrants, such Underwritten Securities have been, or as of the date of
such Terms Agreement will have been, duly authorized for issuance and sale
pursuant to this Agreement and such Terms Agreement. The Warrants, when
duly executed, countersigned and delivered in the manner provided for in
the Warrant Agreement and issued and paid for in accordance with this
Agreement and the applicable Terms Agreement, will constitute valid and
binding obligations of the Company entitled to the benefits of the Warrant
Agreement and enforceable against the Company in accordance with their
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law); each registered holder thereof is
entitled to the benefits of the Warrant Agreement; and the Warrants shall
be exercisable for Common Stock in accordance with their terms and the
terms of the Warrant Agreement.
(17) Authorization of Debt Securities. If the Underwritten Securities
being sold pursuant to the applicable Terms Agreement include Debt
Securities, such Underwritten Securities have been, or as of the date of
such Terms Agreement will have been, duly authorized by the Operating
Partnership for issuance and sale pursuant to this Agreement and such
Terms Agreement. The Debt Securities, when issued and authenticated in the
manner provided for in the Indenture and delivered against payment of the
consideration therefor specified in such Terms Agreement, will constitute
valid and binding obligations of the Operating Partnership, enforceable
against the Operating Partnership in accordance with their terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law), and except further as enforcement thereof
10
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may be limited by requirements that a claim with respect to any Debt
Securities payable in a foreign or composite currency (or a foreign or
composite currency judgment in respect of such claim) be converted into
U.S. dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law or by governmental authority to limit, delay or
prohibit the making of payments outside the United States. The Debt
Securities will be in the form contemplated by, and each registered holder
thereof is entitled to the benefits of, the Indenture.
(18) Authorization of the Underlying Securities. If applicable, the
Underlying Securities have been, or as of the date of the applicable Terms
Agreement will have been, duly authorized and reserved for issuance upon
such exercise or conversion by the Company and, when issued upon such
exercise or conversion, will be validly issued, fully paid and
non-assessable and will not be subject to preemptive or other similar
rights of any securityholder.
(19) Authorization of the Deposit Agreement and the Warrant
Agreement. If the Underwritten Securities being sold pursuant to this
Agreement and the applicable Terms Agreement include Depositary Shares or
Warrants, the applicable Deposit Agreement or the applicable Warrant
Agreement, as the case may be, has been, or prior to the issuance of the
Depositary Shares or the Warrants, as the case may be, will have been,
duly authorized, executed and delivered by the Company and, assuming due
authorization, execution and delivery thereof by the Depositary or the
Warrant Agent, as the case may be, will constitute a valid and binding
agreement of the Company enforceable against the Company in accordance
with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally or by general
equitable principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(20) Authorization of the Indenture. If the Underwritten Securities
being sold pursuant to the applicable Terms Agreement include Debt
Securities, the Indenture has been, or prior to the issuance of the Debt
Securities thereunder will have been, duly authorized, executed and
delivered by the Operating Partnership and, assuming due authorization,
execution and delivery thereof by the Trustee, will constitute a valid and
binding agreement of the Operating Partnership, enforceable against the
Operating Partnership in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity
or at law). The Indenture has been duly qualified under the 1939 Act.
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(21) Authorization of the Remarketing Agreement. If the Underwritten
Securities being sold pursuant to the applicable Terms Agreement include
Debt Securities in the form of MandatOry Par Put Remarketed Securities*,
the Remarketing Agreement (as defined in the Prospectus) has been, or
prior to the issuance of the Debt Securities thereunder will have been,
duly authorized, executed and delivered by the Operating Partnership and
the Company and, assuming due authorization, execution and delivery
thereof by the Remarketing Dealer (as defined in the Prospectus), will
constitute a valid and binding agreement of the Operating Partnership and
the Company, enforceable against the Operating Partnership and the Company
in accordance with its terms.
(22) Descriptions of the Underwritten Securities, Underlying
Securities, Indenture, Remarketing Agreement, Deposit Agreement and
Warrant Agreement. The Underwritten Securities being sold pursuant to the
applicable Terms Agreement and, if applicable, the Indenture, Remarketing
Agreement, Deposit Agreement or Warrant Agreement, as of each
Representation Date, and any Underlying Securities, when issued and
delivered in accordance with the terms of the related Underwritten
Securities, will conform in all material respects to the statements
relating thereto contained in the Prospectus and will be in substantially
the form filed or incorporated by reference, as the case may be, as an
exhibit to the Registration Statement.
(23) Absence of Defaults and Conflicts. None of the Company, the
Operating Partnership or any of their respective subsidiaries is in
violation of its charter, by-laws, agreement of limited liability company,
agreement of limited partnership or other organizational documents or in
default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument to
which the Company, the Operating Partnership or any of their respective
subsidiaries is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company, the Operating
Partnership or any of their respective subsidiaries is subject, except for
any such violation or default that would not have a material adverse
effect on the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise or the Operating Partnership and its
subsidiaries considered as one enterprise, and the execution, delivery and
performance of this Agreement, the applicable Terms Agreement, and if
applicable, the Indenture, Remarketing Agreement, Deposit Agreement or
Warrant Agreement, and the consummation of the transactions contemplated
herein and therein and compliance by the Company and the Operating
Partnership (with respect to this Agreement), each severally, with
obligations hereunder and thereunder have been duly authorized by all
necessary action, 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 their
----------
"MandatOry Par Put Remarketed Securities(sm)" is a service xxxx owned by Xxxxxxx
Xxxxx & Co. Inc.
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respective subsidiaries pursuant to, any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the Company, the
Operating Partnership or any of their respective subsidiaries is a party
or by which any of them may be bound, or to which any of the property or
assets of the Company, the Operating Partnership or any of their
respective subsidiaries is subject, except for any such violation or
default that would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise
or the Operating Partnership and its subsidiaries considered as one
enterprise, nor will such action result in any violation of the charter,
by-laws, agreement of limited liability company, agreement of limited
partnership or other organizational documents of the Company, the
Operating Partnership or any of their respective subsidiaries or any
applicable law, administrative regulation or administrative or court
decree, except for any such violation or default that would not have a
material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise or the Operating Partnership and
its subsidiaries considered as one enterprise.
(24) REIT Qualification. Commencing with the Company's first taxable
year ended December 31, 1993, the Company has been organized in conformity
with the requirements for qualification as a real estate investment trust
("REIT") under the Internal Revenue Code of 1986, as amended (the "Code"),
and the Company's method of operation will enable it to meet the
requirements for taxation as a REIT under the Code.
(25) Absence of Proceedings. Other than as disclosed or incorporated
by reference into the Prospectus, there is no action, suit or proceeding
before or brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company or the Operating
Partnership threatened against or affecting the Company, the Operating
Partnership or any of their respective subsidiaries which is required to
be disclosed in the Prospectus (other than as disclosed therein), or which
might result in any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of
the Company and the subsidiaries considered as one enterprise or the
Operating Partnership and its subsidiaries considered as one enterprise,
or which might materially and adversely affect the property or assets
thereof and the Properties, collectively, or which might materially and
adversely affect the consummation of this Agreement, the applicable Terms
Agreement or any applicable Indenture, Remarketing Agreement, Deposit
Agreement or Warrant Agreement, or the transactions contemplated herein or
therein; all pending legal or governmental proceedings to which the
Company, the Operating Partnership or any of their respective subsidiaries
is a party or of which any property or assets of the Company, the
Operating Partnership or any of their respective subsidiaries or the
Properties is subject which are not described in or incorporated by
reference into the Prospectus, including ordinary routine litigation
incidental to the business, are, considered in the aggregate, not
material; and there are no contracts or documents of the Company, the
Operating Partnership or
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any of their respective subsidiaries which are required to be filed as
exhibits to the Registration Statement by the 1933 Act or by the 1933 Act
Regulations which have not been so filed.
(26) Accuracy of Exhibits. There are no contracts or documents which
are required to be described in the Registration Statement, the Prospectus
or the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and filed as required.
(27) Absence of Further Requirements. No authorization, approval or
consent of any court or governmental authority or agency is required that
has not been obtained in connection with the consummation by the Company
or the Operating Partnership of the transactions contemplated by this
Agreement or the applicable Terms Agreement, and, if applicable, the
Indenture, Remarketing Agreement, Deposit Agreement or Warrant Agreement,
except such as may be required under the 1933 Act or the 1933 Act
Regulations, the 1934 Act or the 1934 Act Regulations, the 1939 Act or the
1939 Act Regulations, state securities laws, real estate syndication laws
or under the rules and regulations of the National Association of
Securities Dealers, Inc. (the "NASD").
(28) Possession of Intellectual Property. The Company, the Operating
Partnership and their respective subsidiaries are not required to own or
possess any trademarks, service marks, trade names or copyrights in order
to conduct the business to be operated by them.
(29) Possession of Licenses and Permits. Each of the Company, the
Operating Partnership and their respective subsidiaries possess, or have
made application for, such certificates, authorities or permits issued by
the appropriate state, federal or foreign regulatory agencies or bodies
necessary to conduct the businesses to be conducted by it, except for such
certificates, authorities or permits, the failure to obtain, maintain or
possess, would not materially and adversely affect the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise
or the Operating Partnership and its subsidiaries considered as one
enterprise; and the Company, the Operating Partnership and any of their
respective subsidiaries have not received any written notice of
proceedings relating to the revocation or modification of any such
certificate, authority or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would materially
and adversely affect the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise or the Operating Partnership and
its subsidiaries considered as one enterprise.
(30) Registration Rights Agreements. There are no persons with
registration rights or other similar rights to have any securities
registered pursuant to the Registration
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Statement or otherwise registered by the Company or the Operating
Partnership under the 1933 Act.
(31) Title to Property. (a) The Operating Partnership or its
subsidiaries, as the case may be, has good and marketable title to all
items of real property owned by them, in each case free and clear of all
liens, encumbrances, claims, security interests and defects, other than
those referred to in the Prospectus, mortgages on real property, and those
that would not have a material adverse effect on the condition, financial
or otherwise, or the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise or the
Operating Partnership and its subsidiaries considered as one enterprise;
(b) all liens, charges, encumbrances, claims, or restrictions on or
affecting the properties and assets owned by the Operating Partnership or
any of its subsidiaries which are required to be disclosed in the
Prospectus are disclosed therein; (c) except as disclosed in the
Prospectus, none of the Company, the Operating Partnership or any of their
respective subsidiaries, or, to the best of the knowledge of the Company
and the Operating Partnership, any lessee under a lease relating to any of
the Properties, is in default under any of the leases relating to the
Properties and neither the Company nor the Operating Partnership knows of
any event which, but for the passage of time or the giving of notice, or
both, would constitute a default under any of such leases, except such
defaults that would not have a material adverse effect on the condition,
financial or otherwise, or on the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise
or the Operating Partnership and its subsidiaries considered as one
enterprise; (d) no tenant under any of the leases pursuant to which the
Company, the Operating Partnership or any of their respective subsidiaries
leases any of its real property or improvements has an option to purchase
the premises demised under such lease; (e) each of the Properties is in
compliance with all applicable codes and zoning laws and regulations,
except for such failures to comply which would not individually or in the
aggregate have a material adverse effect on the condition, financial or
otherwise, or on the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise or the
Operating Partnership and its subsidiaries considered as one enterprise;
and (f) neither the Company nor the Operating Partnership has knowledge of
any pending or threatened condemnation, zoning change, or other proceeding
or action, except such proceedings or actions that would not have a
material adverse effect on the condition, financial or otherwise, or on
the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise or the Operating Partnership
and its subsidiaries considered as one enterprise.
(32) Title Insurance. The Operating Partnership or its subsidiaries
have obtained or have the benefit of title insurance on all the Properties
described in the Prospectus as owned by the Operating Partnership or its
subsidiaries in an amount as is customary for companies engaged in
business similar to the Operating Partnership or its subsidiaries.
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(33) Investment Company Act. The Company, the Operating Partnership
and any of their respective subsidiaries are not, and upon the issuance
and sale of the Underwritten Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus
will not be, an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
(34) Environmental Laws. Except as disclosed in the Prospectus, or
the Incorporated Documents, each of the Company and the Operating
Partnership has no knowledge of (a) the unlawful presence of any
substance, material or waste which is regulated by any federal, state or
local governmental or quasi-governmental authority, including, without
limitation, (i) any substance, material or waste defined, used or listed
as a "hazardous waste", "extremely hazardous waste", "restricted hazardous
waste", "hazardous substance", "hazardous material", "toxic substance" or
other similar terms as defined or used in any Environmental Law (as
defined below), (ii) any petroleum products, asbestos, polychlorinated
biphenyls, lead-based paint, flammable explosives or radioactive materials
and (iii) any additional substances or materials which are hazardous or
toxic substances under any Environmental Law relating to the Properties
(collectively, "Hazardous Materials") on any of the Properties or of (b)
any spill, release, discharge or disposal of Hazardous Materials that have
occurred or are presently occurring at, from or onto any of the Properties
or any properties near or adjacent to the Properties, which presence or
occurrence would materially adversely affect the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise or the Operating
Partnership and its subsidiaries considered as one enterprise. Except as
disclosed in the Prospectus, in connection with the construction on or
operation and use of the Properties, the Company and the Operating
Partnership represent that, as of each Representation Date, each of the
Company and the Operating Partnership has no knowledge of any material
failure to comply with all applicable local, state and federal
environmental laws, regulations, ordinances and administrative and
judicial orders relating to the use, generation, recycling, reuse, sale,
storage, handling, transport and disposal of any Hazardous Materials
(collectively, "Environmental Laws") that would have a material adverse
effect on the condition, financial or otherwise, or on the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise or the Operating Partnership and its
subsidiaries considered as one enterprise.
(b) Officers' Certificates. Any certificate signed by any officer of the Company
in such capacity or as general partner of the Operating Partnership or any of
its subsidiaries and delivered to any Underwriter or to counsel for the
Underwriters in connection with the offering of the Underwritten Securities
shall be deemed a representation and warranty by the Company or the Operating
Partnership, as the case may be, to each Underwriter as to the matters covered
thereby on the date of such certificate and, unless subsequently amended or
supplemented, at each Representation Date subsequent thereto.
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SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Underwritten Securities. The several commitments of the Underwriters
to purchase the Underwritten Securities pursuant to the applicable Terms
Agreement shall be deemed to have been made on the basis of the representations
and warranties herein contained and shall be subject to the terms and conditions
herein set forth.
(b) Option Underwritten Securities. In addition, subject to the terms and
conditions herein set forth, the Company may grant, if so provided in the
applicable Terms Agreement, an option to the Underwriters, severally and not
jointly, to purchase up to the number or aggregate principal amount, as the case
may be, of the Option Underwritten Securities set forth therein at a price per
Option Underwritten Security equal to the price per Initial Underwritten
Security, less an amount equal to any dividends or distributions declared by the
Company and paid or payable on the Initial Underwritten Securities but not
payable on the Option Underwritten Securities. Such option, if granted, will
expire 30 days after the date of such Terms Agreement, and may be exercised in
whole or in part from time to time only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Initial Underwritten Securities upon notice by Xxxxxxx Xxxxx
to the Company setting forth the number or aggregate principal amount, as the
case may be, of Option Underwritten Securities as to which the several
Underwriters are then exercising the option and the time, date and place of
payment and delivery for such Option Underwritten Securities. Any such time and
date of payment and delivery (each, a "Date of Delivery") shall be determined by
Xxxxxxx Xxxxx, but shall not be later than seven full business days after the
exercise of said option, nor in any event prior to the Closing Time, unless
otherwise agreed upon by Xxxxxxx Xxxxx and the Company. If the option is
exercised as to all or any portion of the Option Underwritten Securities, each
of the Underwriters, severally and not jointly, will purchase that proportion of
the total number or aggregate principal amount, as the case may be, of Option
Underwritten Securities then being purchased which the number or aggregate
principal amount, as the case may be, of Initial Underwritten Securities each
such Underwriter has severally agreed to purchase as set forth in such Terms
Agreement bears to the total number or aggregate principal amount, as the case
may be, of Initial Underwritten Securities, subject to such adjustments as
Xxxxxxx Xxxxx in its discretion shall make to eliminate any sales or purchases
of a fractional number or aggregate principal amount, as the case may be, of
Option Underwritten Securities.
(c) Payment. Payment of the purchase price for, and delivery of, the
Initial Underwritten Securities shall be made at the offices of Xxxxx & Wood
LLP, Xxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at such other place as
shall be agreed upon by Xxxxxxx Xxxxx and the Company, at 9:00 A.M. (Eastern
time) on the third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time)
on any given day) business day after the date of the applicable Terms Agreement
(unless postponed in accordance with the provisions of Section 10 hereof), or
such other time not later than ten business days after such date as shall be
agreed upon by Xxxxxxx Xxxxx and the Company (such time and date of payment and
delivery being herein called "Closing Time"). In addition, in the event that the
Underwriters have exercised their option, if any, to purchase any or
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all of the Option Underwritten Securities, payment of the purchase price for,
and delivery of such Option Underwritten Securities, shall be made at the
above-mentioned offices of Xxxxx & Wood LLP or at such other place as shall be
agreed upon by Xxxxxxx Xxxxx and the Company, on the relevant Date of Delivery
as specified in the notice from Xxxxxxx Xxxxx to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
Xxxxxxx Xxxxx for the respective accounts of the Underwriters of the
Underwritten Securities to be purchased by them. It is understood that each
Underwriter has authorized Xxxxxxx Xxxxx, for its account, to accept delivery
of, receipt for, and make payment of the purchase price for, the Underwritten
Securities which it has severally agreed to purchase. Xxxxxxx Xxxxx,
individually and not as representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Underwritten
Securities to be purchased by any Underwriter whose funds have not been received
by the Closing Time or the relevant Date of Delivery, as the case may be, but
such payment shall not relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. The Underwritten Securities, certificates
for the Underwritten Securities or Depositary Receipts evidencing the Depositary
Shares, as applicable, shall be in such denominations and registered in such
names as Xxxxxxx Xxxxx may request in writing at least one full business day
prior to the Closing Time or the relevant Date of Delivery, as the case may be.
The Underwritten Securities, certificates for the Underwritten Securities or
Depositary Receipts evidencing the Depositary Shares, as applicable, will be
made available for examination and packaging by Xxxxxxx Xxxxx in The City of New
York not later than 10:00 A.M. (Eastern time) on the business day prior to the
Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company and the Operating Partnership. Each of
the Company and the Operating Partnership covenants with Xxxxxxx Xxxxx and with
each Underwriter participating in the offering of Underwritten Securities, as
follows:
(a) Immediately following the execution of the applicable Terms Agreement,
the Company will prepare a prospectus supplement (a "Prospectus Supplement")
setting forth the number of Underwritten Securities covered thereby and their
terms not otherwise specified in the Prospectus pursuant to which the
Underwritten Securities are being issued, the names of the Underwriters
participating in the offering and the number of Underwritten Securities which
each severally has agreed to purchase, the names of the Underwriters acting as
co-managers in connection with the offering, the price at which the Underwritten
Securities are to be purchased by the Underwriters from the Company, the initial
public offering price, if any, the selling concession and reallowance, if any,
any delayed delivery arrangements, and such other information as Xxxxxxx Xxxxx
and the Company or the Operating Partnership, as the case may be, deem
appropriate in connection with the offering of the Underwritten Securities; and
the Company or the Operating Partnership, as the case may be, will, by the close
of business in New York on the business day immediately succeeding the date of
the applicable Terms Agreement,
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transmit copies of the Prospectus Supplement to the Commission for filing
pursuant to Rule 424(b) of the 1933 Act Regulations and will furnish to the
Underwriters named therein as many copies of the Prospectus (including such
Prospectus Supplement) as Xxxxxxx Xxxxx shall reasonably request. If the Company
or the Operating Partnership, as the case may be, elects to rely on Rule 434
under the 1933 Act Regulations, the Company or the Operating Partnership, as the
case may be, will prepare an abbreviated term sheet that complies with the
requirements of Rule 434 under the 1933 Act Regulations and will provide the
Underwriters with copies of the form of Rule 434 Prospectus, in such number as
the Underwriters may reasonably request, and file or transmit for filing with
the Commission the form of Prospectus complying with Rule 434(c)(2) of the 1933
Act Regulations in accordance with Rule 424(b) of the 1933 Act Regulations by
the close of business in New York on the business day immediately succeeding the
date of the applicable Terms Agreement.
(b) The Company and the Operating Partnership will notify Xxxxxxx Xxxxx
immediately, and confirm such notice in writing, of (i) the effectiveness of any
amendment to the Registration Statement, (ii) the transmittal to the Commission
for filing of any Prospectus Supplement or other supplement or amendment to the
Prospectus or any document to be filed pursuant to the 1934 Act, (iii) the
receipt of any comments from the Commission, (iv) any request by the Commission
for any amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for additional information, and (v) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose. The Company and
the Operating Partnership will make every reasonable effort to prevent the
issuance of any such stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(c) At any time when the Prospectus is required to be delivered under the
1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities, the Company and the Operating Partnership will give Xxxxxxx Xxxxx
notice of its intention to file or prepare any amendment to the Registration
Statement or any amendment or supplement to the Prospectus, whether pursuant to
the 1933 Act, 1934 Act or otherwise, (including any revised Prospectus which the
Company or the Operating Partnership, as the case may be, proposes for use by
the Underwriters in connection with an offering of Underwritten Securities which
differs from the Prospectus on file at the Commission at the time the
Registration Statement first becomes effective, whether or not such revised
Prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act
Regulations, or any abbreviated term sheet prepared in reliance on Rule 434 of
the 1933 Act Regulations) and will xxxxxxx Xxxxxxx Xxxxx with copies of any such
amendment or supplement a reasonable amount of time prior to such proposed
filing or preparation, as the case may be, and will not file or prepare any such
amendment or supplement or other documents in a form to which Xxxxxxx Xxxxx or
counsel for the Underwriters shall reasonably object.
(d) The Company and the Operating Partnership will deliver to each
Underwriter as many signed and conformed copies of the Registration Statement as
originally filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and
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documents incorporated or deemed to be incorporated by reference therein) as
such Underwriter reasonably requests.
(e) The Company or the Operating Partnership, as the case may be, will
furnish to each Underwriter, from time to time during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act in
connection with sales of the Underwritten Securities, such number of copies of
the Prospectus (as amended or supplemented) as such Underwriter may reasonably
request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations,
the 1934 Act or the 1934 Act Regulations.
(f) If at any time when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities any event shall occur or condition shall exist as a result of which
it is necessary, in the opinion of counsel for the Underwriters or counsel for
the Company and the Operating Partnership, to amend or supplement the Prospectus
in order that the Prospectus will not include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein not misleading in the light of the circumstances existing at
the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of either such counsel, at any such time to amend or supplement the
Registration Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, then the Company and
the Operating Partnership will promptly prepare and file with the Commission
such amendment or supplement, whether by filing documents pursuant to the 1933
Act, the 1934 Act or otherwise, as may be necessary to correct such untrue
statement or omission or to make the Registration Statement and Prospectus
comply, in the opinion of counsel to the Underwriters, with such requirements,
and the Company and the Operating Partnership will furnish to the Underwriters a
reasonable number of copies of such amendment or supplement.
(g) The Company and the Operating Partnership will endeavor, in
cooperation with the Underwriters, to qualify the Underwritten Securities and
any related Underlying Securities for offering and sale under the applicable
securities laws and real estate syndication laws of such states and other
jurisdictions of the United States as Xxxxxxx Xxxxx may designate; provided,
however, that the Company or the Operating Partnership, as the case may be,
shall not be obligated to qualify as a foreign corporation in any jurisdiction
where it is not so qualified. In each jurisdiction in which the Underwritten
Securities and any related Underlying Securities have been so qualified, the
Company or the Operating Partnership, as the case may be, will file such
statements and reports as may be required by the laws of such jurisdiction to
continue such qualification in effect for so long as may be required for the
distribution of the Underwritten Securities; provided, however, that the Company
or the Operating Partnership, as the case may be, shall not be obligated to
qualify as a foreign corporation in any jurisdiction where it is not so
qualified.
(h) With respect to each sale of Underwritten Securities, the Company or
the Operating Partnership, as the case may be, will timely file such reports
pursuant to the 1934 Act as are
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necessary in order to make generally available to its securityholders as soon as
practicable an earnings statement (in form complying with the provisions of Rule
158 of the 1933 Act Regulations) for the purposes of, and to provide the
benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(i) The Company will use its best efforts to meet the requirements to
qualify as a "real estate investment trust" under the Code for the taxable year
in which sales of the Underwritten Securities are to occur.
(j) The Company or the Operating Partnership, as the case may be, will use
the net proceeds received by it from the sale of the Underwritten Securities in
the manner specified in the Prospectus under the caption "Use of Proceeds."
(k) The Company and the Operating Partnership, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act in
connection with sales of the Underwritten Securities, will file all documents
required to be filed with the Commission pursuant to Section 13, 14 or 15 of the
1934 Act within the time periods prescribed by the 1934 Act and the 1934 Act
Regulations.
(l) To the extent specified in the applicable Terms Agreement, neither the
Company nor the Operating Partnership will, with respect to the Underwritten
Securities covered thereby, without Xxxxxxx Xxxxx'x prior written consent,
directly or indirectly, sell, offer to sell, grant any option for the sale of,
or otherwise dispose of, any of the applicable Underwritten Securities (other
than the Underwritten Securities which are to be sold pursuant to such Terms
Agreement) or any securities convertible into or exchangeable into or
exercisable for the applicable Underwritten Securities, except in accordance
with this Agreement, pursuant to a dividend reinvestment plan, pursuant to
employee or director stock option plans, or as partial or full payment for
properties to be acquired by the Operating Partnership.
(m) If specified in the applicable Terms Agreement, the Company will use
its best efforts to list the Initial Underwritten Securities on the New York
Stock Exchange or such other national exchange on which the Company's Initial
Underwritten Securities are then listed.
SECTION 4. Payment of Expenses. (a) Expenses. The Company will pay all
expenses incident to the performance of its obligations under this Agreement or
the applicable Terms Agreement, including (i) the preparation, printing and
filing of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto, (ii) the
preparation, printing and delivery to the Underwriters of this Agreement, any
Terms Agreement, any Agreement among Underwriters, the Indenture and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Underwritten Securities or any related Underlying
Securities, (iii) the preparation, issuance and delivery of the Underwritten
Securities and any related Underlying Securities, any certificates for the
Underwritten Securities or such Underlying Securities or Depositary Receipts
evidencing the
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Depositary Shares, as applicable, to the Underwriters, including any transfer
taxes and any stamp or other duties payable upon the sale, issuance or delivery
of the Underwritten Securities to the Underwriters, (iv) the fees and
disbursements of the Company's counsel, accountants and other advisors or agents
(including transfer agents and registrars), as well as the fees and
disbursements of the Trustee, any Depositary, any Warrant Agent and their
respective counsel, (v) the qualification of the Underwritten Securities and any
related Underlying Securities under state securities laws and real estate
syndication laws in accordance with the provisions of Section 3(g) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation,
printing and delivery of the Blue Sky Survey, and any amendment thereto, (vi)
the printing and delivery to the Underwriters of copies of each preliminary
prospectus, any Term Sheet, and the Prospectus and any amendments or supplements
thereto, (vii) the fees charged by nationally recognized statistical rating
organizations for the rating of the Underwritten Securities and any related
Underlying Securities, if applicable, (viii) the fees and expenses incurred with
respect to the listing of the Underwritten Securities and any related Underlying
Securities, if applicable, (ix) the filing fees incident to, and the reasonable
fees and disbursements of counsel to the Underwriters in connection with, the
review, if any, by the NASD of the terms of the sale of the Underwritten
Securities and any related Underlying Securities, and (x) the reasonable fees
and expenses of any Underwriter acting in the capacity of a "qualified
independent underwriter" (as defined in Rule 2720(b)(15) of the Rules of the
NASD), if applicable.
(b) Termination of Agreement. If the applicable Terms Agreement is
terminated by Xxxxxxx Xxxxx in accordance with the provisions of Section 5 or
Section 9(b)(i) hereof, the Company shall reimburse the Underwriters for all of
their out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Underwritten Securities pursuant to the
applicable Terms Agreement are subject to the accuracy in all material respects
of the representations and warranties of the Company and the Operating
Partnership contained in Section 1 hereof or in certificates of any officer of
the Company or the Operating Partnership or any of their respective subsidiaries
delivered pursuant to the provisions hereof, to the performance by the Company
and the Operating Partnership of its covenants and other obligations hereunder,
and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective under the
1933 Act and no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act and no proceedings for that
purpose shall have been instituted or be pending or threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the Underwriters. A prospectus containing information relating to the
description of the Underwritten Securities and any related Underlying
Securities, the specific method of distribution and similar matters shall
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have been filed with the Commission in accordance with Rule 424(b)(1), (2), (3),
(4) or (5), as applicable (or any required post-effective amendment providing
such information shall have been filed and declared effective in accordance with
the requirements of Rule 430A), or, if the Company or the Operating Partnership
has elected to rely upon Rule 434 of the 1933 Act Regulations, a Term Sheet
including the Rule 434 Information shall have been filed with the Commission in
accordance with Rule 424(b)(7).
(b) Opinion of Counsel for the Company and the Operating Partnership. At
Closing Time, Xxxxxxx Xxxxx shall have received the favorable opinion, dated as
of Closing Time, of Xxxxxx & Xxxxx, counsel for the Company and the Operating
Partnership, in form and substance reasonably satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letter for each
of the other Underwriters, to the effect set forth in Exhibit B hereto and to
such further effect as counsel to the Underwriters may reasonably request.
(c) Opinion of Counsel for the Underwriters. At Closing Time, Xxxxxxx
Xxxxx shall have received the favorable opinion, dated as of Closing Time, of
Xxxxx & Wood LLP, counsel for the Underwriters, with respect to the matters set
forth in (i), (vii) to (xix), inclusive, of Exhibit B.
(d) Additional Opinion. In giving their opinions required by subsections
(b) and (c), respectively, of this Section, Xxxxxx & Xxxxx and Xxxxx & Xxxx LLP
shall each additionally state that nothing has come to their attention that
would lead them to believe that the Registration Statement or any amendment
thereto (except for financial statements, supporting schedules and other
financial data, as to which counsel need make no statement), at the time it
became effective (or, if an amendment to the Registration Statement or an Annual
Report on Form 10-K has been filed by the Company or the Operating Partnership
with the Commission, subsequent to the effectiveness of the Registration
Statement, then at the time such amendment becomes effective or at the time of
the most recent filing of such Annual Report, as the case may be) or at the
Representation Date, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading or that the Prospectus or any
amendment or supplement thereto (except for financial statements, supporting
schedules and other financial data, as to which such counsel need make no
statement), at the Representation Date or at Closing Time, 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. In giving their
opinions required by subsections (b) and (c), respectively, of this Section,
Xxxxxx & Xxxxx and Xxxxx & Xxxx LLP may rely, (1) as to all matters of fact,
upon certificates and written statements of officers and employees of and
accountants for the Company and the Operating Partnership, (2) with respect to
certain other matters, upon certificates of appropriate government officials in
such jurisdiction, and (3) as to matters involving the laws of the State of
Maryland, upon the opinion of Xxxxx Xxxxxxx L.L.P. (or other counsel reasonably
satisfactory to counsel for the Underwriters) in form and substance satisfactory
to counsel for the Underwriters.
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(e) Officers' Certificate. At Closing Time, there shall not have been,
since the date of the applicable Terms Agreement or since the respective dates
as of which information is given in the Prospectus, any material adverse change
in the condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise or the Operating Partnership and its subsidiaries considered as one
enterprise, or the Properties, collectively, whether or not arising in the
ordinary course of business, from that set forth in the Prospectus; no
proceedings shall be pending or, to the knowledge of the Company or the
Operating Partnership, threatened against the Company, the Operating Partnership
or any of their respective subsidiaries or any of the Properties before or by
any Federal, state or other commission, board or administrative agency wherein
an unfavorable decision, ruling or finding would materially and adversely affect
the business, property, financial condition or income of the Company and its
subsidiaries considered as one enterprise or the Operating Partnership and its
subsidiaries considered as one enterprise or the Properties, collectively, other
than as set forth in the Prospectus or incorporated therein by reference; and
Xxxxxxx Xxxxx shall have received a certificate of the President or the Chief
Executive Officer and of the Chief Financial Officer of the Company in such
capacity, and of the general partner of the Operating Partnership, dated as of
such Closing Time, to the effect that (i) there has been no such material
adverse change and (ii) the representations and warranties in Section 1 are true
and correct in all material respects with the same force and effect as though
such Closing Time were a Representation Date. As used in this Section 5(e), the
term "Prospectus" means the Prospectus in the form first used to confirm sales
of the Underwritten Securities.
(f) Accountant's Comfort Letter. At the time of the execution of the
applicable Terms Agreement, Xxxxxxx Xxxxx shall have received from (1) Coopers &
Xxxxxxx L.L.P. a letter dated such date, in form and substance reasonably
satisfactory to Xxxxxxx Xxxxx, together with signed or reproduced copies of such
letter for each of the other Underwriters, containing statements and information
as set forth in Exhibit C and (2) Deloitte & Touche LLP a letter dated such
date, in form and substance reasonably satisfactory to Xxxxxxx Xxxxx, together
with signed or reproduced copies of such letter for each of the other
Underwriters, with respect to the historical consolidated financial statements
of ROC Communities.
(g) Bring-down Comfort Letter. At Closing Time, Xxxxxxx Xxxxx shall have
received from Coopers & Xxxxxxx L.L.P. a letter, dated as of Closing Time, to
the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (f)(1) of this Section 5, except that the specified date
referred to shall be a date not more than three business days prior to the
Closing Time.
(h) Comfort Letter for Acquisitions. At the time of the execution of the
applicable Terms Agreement, Xxxxxxx Xxxxx shall have received a letter dated
such date from such independent accountants that have prepared historical
financial statements included in or incorporated by reference into the
Registration Statement and Prospectus which financial statements relate to
properties or assets acquired or to be acquired by the Company or the Operating
Partnership, as the case may be, in form and substance satisfactory to the
Underwriters, to the effect that (i) they
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are independent accountants with respect to the Company or the Operating
Partnership, as the case may be, and such properties or assets within the
meaning of the 1933 Act and the 1933 Act Regulations; and (ii) it is their
opinion that the historical financial statements for such properties or assets
that have been audited by them and covered by their opinions included or
incorporated by reference into the Registration Statement and the Prospectus
comply in form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations.
(i) Ratings. At Closing Time and at any relevant Date of Delivery, unless
the Underwritten Securities being sold pursuant to the applicable Terms
Agreement relate solely to Common Stock, the Underwritten Securities shall have
the ratings accorded by any "nationally recognized statistical rating
organization", as defined by the Commission for purposes of Rule 436(g)(2) of
the 1933 Act Regulations, if and as specified in the applicable Terms Agreement,
and the Company shall have delivered to Xxxxxxx Xxxxx a letter, dated as of such
date, from each such rating organization, or other evidence satisfactory to
Xxxxxxx Xxxxx, confirming that the Underwritten Securities have such ratings.
Since the time of execution of such Terms Agreement, there shall not have
occurred a downgrading in, or withdrawal of, the rating assigned to the
Underwritten Securities or any of the Company's or Operating Partnership's other
securities by any such rating organization, and no such rating organization
shall have publicly announced that it has under surveillance or review its
rating of the Underwritten Securities or any of the Company's or Operating
Partnership's other securities.
(j) Approval of Listing. At Closing Time, the Underwritten Securities
shall have been approved for listing, subject only to official notice of
issuance, if and as specified in the applicable Terms Agreement.
(k) No Objection. If the Registration Statement or an offering of
Underwritten Securities has been filed with the NASD for review, the NASD shall
not have raised any objection with respect to the fairness and reasonableness of
the underwriting terms and arrangements.
(l) Lock-up Agreements. On the date of the applicable Terms Agreement,
Xxxxxxx Xxxxx shall have received, in form and substance satisfactory to it,
each lock-up agreement, if any, specified in such Terms Agreement as being
required to be delivered by the persons listed therein.
(m) Over-Allotment Option. In the event that the Underwriters are granted
an over-allotment option by the Company in the applicable Terms Agreement and
the Underwriters exercise their option to purchase all or any portion of the
Option Underwritten Securities, the representations and warranties of the
Company and the Operating Partnership contained herein and the statements in any
certificates furnished by the Company, the Operating Partnership or any of their
respective subsidiaries hereunder shall be true and correct as of each Date of
Delivery, and, at the relevant Date of Delivery, Xxxxxxx Xxxxx shall have
received:
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(1) A certificate, dated such Date of Delivery, of the President,
Chief Executive Officer or a Vice President of the Company and of the
Chief Financial Officer or chief accounting officer of the Company on
behalf of the Company and on behalf of the Company in its capacity as
general partner of the Operating Partnership confirming that the
certificate delivered at the Closing Time pursuant to Section 5(e) hereof
remains true and correct as of such Date of Delivery.
(2) The favorable opinion of Xxxxxx & Xxxxx, counsel for the Company
and the Operating Partnership, in form and substance reasonably
satisfactory to counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Underwritten Securities to be purchased on such
Date of Delivery and otherwise to the same effect as the opinion required
by Sections 5(b) and 5(d) hereof.
(3) The favorable opinion of Xxxxx & Wood LLP, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Underwritten Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Sections 5(c) and
5(d) hereof.
(4) A letter from Coopers & Xxxxxxx L.L.P., in form and substance
satisfactory to Xxxxxxx Xxxxx and dated such Date of Delivery,
substantially the same in scope and substance as the letter furnished to
Xxxxxxx Xxxxx pursuant to Section 5(f)(1) hereof, except that the
"specified date" in the letter furnished pursuant to this Section 5(m) (4)
shall be a date not more than three days prior to such Date of Delivery.
(5) Since the time of execution of such Terms Agreement, there shall
not have occurred a downgrading in, or withdrawal of, the rating assigned
to the Underwritten Securities or any of the Company's or Operating
Partnership's other securities by any such rating organization, and no
such rating organization shall have publicly announced that it has under
surveillance or review its rating of the Underwritten Securities or any of
the Company's or the Operating Partnership's other securities.
(n) Additional Documents. At Closing Time and at each Date of Delivery,
counsel for the Underwriters shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of enabling them to pass
upon the issuance and sale of the Underwritten Securities as herein
contemplated, or in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company or the Operating Partnership in
connection with the issuance and sale of the Underwritten Securities as herein
contemplated shall be reasonably satisfactory in form and substance to Xxxxxxx
Xxxxx and counsel for the Underwriters.
(o) Termination of Terms Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be fulfilled,
the applicable Terms Agreement (or, with respect to the Underwriters' exercise
of any applicable over-allotment option for the
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purchase of Option Underwritten Securities on a Date of Delivery after the
Closing Time, the obligations of the Underwriters to purchase the Option
Underwritten Securities on such Date of Delivery) may be terminated by Xxxxxxx
Xxxxx by notice to the Company at any time at or prior to the Closing Time (or
such Date of Delivery, as applicable), and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 1, 6, 7 and 8 shall survive any such termination and remain
in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company and the Operating
Partnership, jointly and severally, hereby agree to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as
follows:
(1) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 430A Information
and the Rule 434 Information deemed to be a part thereof, if applicable,
or the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(2) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that any such settlement is
effected with the written consent of the indemnifying party; and
(3) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Xxxxxxx Xxxxx), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (1) or (2)
above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information
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furnished to the Company and the Operating Partnership by any Underwriter
through Xxxxxxx Xxxxx expressly for use in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(b) Indemnification of Company, Operating Partnership, Directors and
Officers. Each Underwriter severally agrees to indemnify and hold harmless the
Company, the Operating Partnership, the directors, each of the officers who
signed the Registration Statement, and each person, if any, who controls the
Company or the Operating Partnership within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information deemed to be a part thereof, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company and the Operating Partnership by such Underwriter through Xxxxxxx
Xxxxx expressly for use in the Registration Statement (or any amendment thereto)
or such preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Xxxxxxx Xxxxx, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
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a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company or the
Operating Partnership, on the one hand, and the Underwriters, on the other hand,
from the offering of the Underwritten Securities pursuant to the applicable
Terms Agreement or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company or the Operating Partnership, on the one hand, and the
Underwriters, on the other hand, in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company or the Operating
Partnership, on the one hand, and the Underwriters, on the other hand, in
connection with the offering of the Underwritten Securities pursuant to the
applicable Terms Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of such Underwritten
Securities (before deducting expenses) received by the Company or the Operating
Partnership and the total underwriting discount received by the Underwriters, in
each case as set forth on the cover of the Prospectus, or, if Rule 434 is used,
the corresponding location on the Term Sheet bear to the aggregate initial
public offering price of such Underwritten Securities as set forth on such
cover.
The relative fault of the Company or the Operating Partnership, on the one
hand, and the Underwriters, on the other hand, shall be determined by reference
to, among other things, whether any such 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 Operating Partnership or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company, the Operating Partnership and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
7. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by
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any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue or alleged untrue statement or omission or
alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Underwritten Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company or the
Operating Partnership within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the
Company or the Operating Partnership. The Underwriters' respective obligations
to contribute pursuant to this Section 7 are several in proportion to the number
or aggregate principal amount, as the case may be, of Initial Underwritten
Securities set forth opposite their respective names in the applicable Terms
Agreement, and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or
the applicable Terms Agreement or in certificates of officers of the Company and
the Operating Partnership or any of their respective subsidiaries submitted
pursuant hereto or thereto shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company or the Operating
Partnership, and shall survive delivery of and payment for the Underwritten
Securities.
SECTION 9. Termination.
(a) Underwriting Agreement. This Agreement (excluding the applicable Terms
Agreement) may be terminated for any reason at any time by the Company, the
Operating Partnership or by Xxxxxxx Xxxxx upon the giving of 30 days' prior
written notice of such termination to the other party hereto.
(b) Terms Agreement. Xxxxxxx Xxxxx may terminate the applicable Terms
Agreement, by notice to the Company, at any time at or prior to the Closing Time
or any relevant Date of Delivery, if (i) there has been, since the time of
execution of such Terms Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change
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in the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise or the Operating Partnership and subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
there has occurred any material adverse change in the financial markets in the
United States or, if the Underwritten Securities or any related Underlying
Securities include Debt Securities denominated or payable in, or indexed to, one
or more foreign or composite currencies, in the international financial markets,
or any outbreak of hostilities or escalation thereof or other calamity or crisis
or any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of Xxxxxxx Xxxxx,
impracticable to market the Underwritten Securities or to enforce contracts for
the sale of the Underwritten Securities, or (iii) trading in any securities of
the Company has been suspended or materially limited by the Commission or the
New York Stock Exchange, or if trading generally on the New York Stock Exchange
or the American Stock Exchange or in the Nasdaq National Market has been
suspended or materially limited, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices have been required, by either of said
exchanges or by such system or by order of the Commission, the NASD or any other
governmental authority, or (iv) a banking moratorium has been declared by either
Federal or New York authorities or, if the Underwritten Securities or any
related Underlying Securities include Debt Securities denominated or payable in,
or indexed to, one or more foreign or composite currencies, by the relevant
authorities in the related foreign country or countries.
(c) Liabilities. If this Agreement or the applicable Terms Agreement is
terminated pursuant to this Section 9, such termination shall be without
liability of any party to any other party except as provided in Section 4
hereof, and provided further that Sections 1, 6, 7 and 8 shall survive such
termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at the Closing Time or the relevant Date of
Delivery, as the case may be, to purchase the Underwritten Securities which it
or they are obligated to purchase under the applicable Terms Agreement (the
"Defaulted Securities"), then Xxxxxxx Xxxxx shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, Xxxxxxx Xxxxx shall not have completed such
arrangements within such 24-hour period, then:
(a) if the number or aggregate principal amount, as the case may be,
of Defaulted Securities does not exceed 10% of the number or aggregate
principal amount, as the case may be, of Underwritten Securities to be
purchased on such date pursuant to such Terms Agreement, the
non-defaulting Underwriters shall be obligated, severally and not jointly,
to purchase the full amount thereof in the proportions that their
respective underwriting
31
36
obligations under such Terms Agreement bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the number or aggregate principal amount, as the case may be,
of Defaulted Securities exceeds 10% of the number or aggregate principal
amount, as the case may be, of Underwritten Securities to be purchased on
such date pursuant to such Terms Agreement, such Terms Agreement (or, with
respect to the Underwriters' exercise of any applicable over-allotment
option for the purchase of Option Underwritten Securities on a Date of
Delivery after the Closing Time, the obligations of the Underwriters to
purchase, and the Company to sell, such Option Underwritten Securities on
such Date of Delivery) shall terminate without liability on the part of
any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i) a
termination of the applicable Terms Agreement or (ii) in the case of a Date of
Delivery after the Closing Time, a termination of the obligations of the
Underwriters and the Company with respect to the related Option Underwritten
Securities, as the case may be, either Xxxxxxx Xxxxx or the Company shall have
the right to postpone the Closing Time or the relevant Date of Delivery, as the
case may be, for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or the Prospectus or in any other
documents or arrangements.
SECTION 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to Xxxxxxx Xxxxx at World Financial Center, Xxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, attention of Xxxx X. Xxxxx, Director;
notices to the Company shall be directed to it at Chateau Communities, Inc.,
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, attention of Xxxx X.
XxXxxxxx, Chief Executive Officer; and notices to the Operating Partnership
shall be directed to it at CP Limited Partnership, 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx 00000, attention of Xxxx X.
XxXxxxxx, Chief Executive Officer.
SECTION 12. Parties. This Agreement and the applicable Terms Agreement
shall each inure to the benefit of and be binding upon the Company, the
Operating Partnership, Xxxxxxx Xxxxx and, upon execution of such Terms
Agreement, any other Underwriters and their respective successors. Nothing
expressed or mentioned in this Agreement or such Terms Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters, the Company and the Operating Partnership and their respective
successors and the controlling persons and officers and directors referred to in
Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or such
Terms Agreement or any provision herein or therein contained. This Agreement and
such Terms Agreement and all conditions and provisions hereof and thereof are
32
37
intended to be for the sole and exclusive benefit of the parties hereto and
thereto and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Underwritten
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT AND ANY APPLICABLE
TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
33
38
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Agreement, along with all counterparts, will become a binding agreement
between Xxxxxxx Xxxxx and the Company and the Operating Partnership in
accordance with its terms.
Very truly yours,
CHATEAU COMMUNITIES, INC.
By:
-----------------------------
Name:
Title:
CP LIMITED PARTNERSHIP
By: Chateau Communities, Inc.
(one of its general partners)
By:
-----------------------------
Name:
Title:
By: ROC Communities, Inc.
(its other general partner)
By:
-----------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
---------------------------
Authorized Signatory
34
39
EXHIBIT A
CHATEAU COMMUNITIES, INC.
(a Maryland Corporation)
CP LIMITED PARTNERSHIP
(a Maryland limited partnership)
[ ]
TERMS AGREEMENT
[ ]
To: Chateau Communities, Inc.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
We understand that [Chateau Communities, Inc., a Maryland corporation (the
"Company")] [CP Limited Partnership, a Maryland limited partnership (the
"Operating Partnership")], proposes to issue and sell [ shares of its common
stock, par value $.01 per share (the "Common Stock")] [ warrants for the
purchase of Common Stock (the "Warrants")][ shares of its preferred stock, par
value [ ] per share (the "Preferred Stock")] [ depositary shares, each
representing of a share of Preferred Stock (the "Depositary Shares")] [$
aggregate principal amount of its [senior] [subordinated] debt securities (the
"Debt Securities")] ([such securities also being hereinafter referred to as] the
"[Initial] Underwritten Securities"). Subject to the terms and conditions set
forth or incorporated by reference herein, we [the underwriters named below (the
"Underwriters")] offer to purchase [, severally and not jointly,] the [[number]
[principal] [amount] of] Underwritten Securities [opposite their names set forth
below] at the purchase price set forth below [, and a proportionate share of
Option Underwritten Securities set forth below, to the extent any are
purchased].
A-1
40
[Number]
[Principal Amount]
Underwriter of [Initial] Underwritten Securities
----------- ------------------------------------
----------------
Total [$]
================
The Underwritten Securities shall have the following terms:
[Common Stock]
Title:
Number of shares:
Number of Option Underwritten Securities:
Initial public offering price per share: $
Purchase price per share: $
Listing requirements:
Black-out provisions:
Lock-up provisions:
Other terms and conditions:
Closing date and location:
[Preferred Stock]
Title:
Rank:
Ratings:
Number of shares:
Number of Option Underwritten Securities:
Dividend rate (or formula) per share: $
Dividend payment dates:
Stated value: $
Liquidation preference per share: $
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Lock-up provisions:
A-2
41
Initial public offering price per share: $___ plus accumulated dividends, if
any, from _____
Purchase price per share: $___ plus accumulated dividends, if
any, from _____
Other terms and conditions:
Closing date and location:
[Depositary Shares]
Title:
Fractional amount of Preferred Shares represented by each Depositary Share:
Rank:
Ratings:
Number of shares:
Number of Option Underwritten Securities:
Dividend rate (or formula) per share: $
Dividend payment dates:
Stated value: $
Liquidation preference per share: $
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Lock-up provisions:
Initial public offering price per share: $___ plus accumulated dividends, if
any, from _____
Purchase price per share: $___ plus accumulated dividends, if
any, from _____
Other terms and conditions:
Closing date and location:
[Warrants]
Title of Warrants:
Number to be issued:
Initial public offering price per Warrant: $
Purchase price per Warrant: $
Listing requirement: [None] [NYSE]
Exercisable for:
Exercise price:
Exercise provisions:
Closing date and location:
Additional representations, if any:
Redemption provisions:
Lock-up provisions:
Other terms and conditions:
X-0
00
X-0
43
[Debt Securities]
Title:
Rank:
Ratings:
Aggregate principal amount:
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Fixed or Variable Price Offering: [Fixed] [Variable] Price Offering
If Fixed Price Offering, initial public offering price per share: %
of the principal amount, plus accrued interest [amortized original issue
discount], if any, from ___________________.
Purchase price per share: ___% of principal amount, plus accrued interest
[amortized original issue discount], if any, from _________________.
Form:
Other terms and conditions:
Closing date and location:
All of the provisions contained in the document attached as Annex I hereto
entitled "CHATEAU COMMUNITIES, INC./CP LIMITED PARTNERSHIP -- Common Stock,
Preferred Stock, Depositary Shares Representing Preferred Stock, Warrants and
Debt Securities--Underwriting Agreement" are hereby incorporated by reference in
their entirety herein and shall be deemed to be a part of this Terms Agreement
to the same extent as if such provisions had been set forth in full herein.
Terms defined in such document are used herein as therein defined.
A-5
44
Please accept this offer no later than ____ o'clock P.M. (New York City
time) on ______________ by signing a copy of this Terms Agreement in the space
set forth below and returning the signed copy to us.
Very truly yours,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
------------------------------
Authorized Signatory
[Acting on behalf of itself and the other named
Underwriters.]
Accepted:
CHATEAU COMMUNITIES, INC.
By:
----------------------------
Name:
Title:
CP LIMITED PARTNERSHIP
By: Chateau Communities, Inc.
(a general partner)
By:
----------------------------
Name:
Title:
By: ROC Communities, Inc.
(a general partner)
By:
----------------------------
Name:
Title:
X-0
00
XXXXXXX X
FORM OF OPINION OF COUNSEL FOR THE COMPANY
AND THE OPERATING PARTNERSHIP TO BE DELIVERED
PURSUANT TO SECTION 5(b)
(i) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Maryland.
(ii) The Operating Partnership has been duly formed and is validly
existing as a limited partnership in good standing under the laws of the
State of Maryland. All of the issued and outstanding partnership interests
of the Operating Partnership have been duly authorized and validly issued
to the Company and the entities or persons described in the Prospectus and
are fully paid.
(iii) Each "significant subsidiary" of the Operating Partnership (as
such term is defined in Rule 1-02 of Regulation S-X promulgated under the
0000 Xxx) (each, a "Subsidiary" and, collectively, the "Subsidiaries") has
been duly organized and is validly existing as a partnership, limited
liability company or corporation, as the case may be, in good standing
under the laws of its state of organization.
(iv) Each of the Company and its subsidiaries and each of the
Operating Partnership and its Significant Subsidiaries has full corporate,
limited liability company or partnership power and authority, as the case
may be, to own, lease and operate its properties and to conduct its
respective business as described in the Prospectus.
(v) Each of the Company and its subsidiaries and each of the
Operating Partnership and its Significant Subsidiaries is duly qualified
or registered as a foreign corporation, limited liability company or
partnership, as the case may be, to transact business and is in good
standing in the States of Colorado, Florida, Georgia, Maryland, Michigan,
Minnesota and Indiana.
(vi) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus under "Capitalization" (as of
the date set forth therein) and such stock has been duly authorized,
validly issued, fully paid and non-assessable. The issued and outstanding
Units of the Operating Partnership is as set forth in the Prospectus under
"Capitalization: (as of the date set forth therein) and such Units have
been duly authorized, validly issued, fully paid and non-assessable.
(vii) Each of this Agreement and the applicable Terms Agreement has
been duly authorized, executed and delivered by the Company.
B-1
46
(viii) Each of this Agreement and the applicable Terms Agreement has
been duly authorized, executed and delivered by the Operating Partnership.
(ix) If the Underwritten Securities being sold pursuant to this
Agreement and the applicable Terms Agreement include Common Stock, such
Underwritten Securities have been duly authorized for issuance and sale
pursuant to this Agreement and such Terms Agreement. The Common Stock,
when issued and delivered by the Company pursuant to this Agreement
against payment of the consideration set forth in such Terms Agreement or
any Delayed Delivery Contract, will be validly issued, fully paid and
non-assessable and will not be subject to preemptive or other similar
rights arising out of the operation of law or otherwise. The form of
certificate used to evidence the Underwritten Securities is in due and
proper form and complies in all material respects with all applicable
statutory requirements.
(x) If the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Preferred Stock, such Underwritten
Securities have been duly authorized for issuance and sale pursuant to
this Agreement and such Terms Agreement. The Preferred Stock, when issued
and delivered by the Company pursuant to this Agreement against payment of
the consideration therefor specified in such Terms Agreement, will be
validly issued, fully paid and non-assessable and will not be subject to
preemptive or other similar rights of any securityholder of the Company.
The applicable Articles Supplementary is in full force and effect. The
form of certificate used to evidence the Underwritten Securities is in due
and proper form and complies in all material respects with all applicable
statutory requirements.
(xi) If the Underwritten Securities being sold pursuant to this
Agreement and the applicable Terms Agreement include Depositary Shares,
such Depositary Shares and the deposit of the Preferred Stock in
accordance with the Deposit Agreement have been duly authorized by the
Company for issuance and sale pursuant to this Agreement and such Terms
Agreement. The Depositary Shares, when issued and delivered by the Company
pursuant to this Agreement against payment of the consideration therefor
specified in such Terms Agreement, will be validly issued, fully paid and
non-assessable and will not be subject to preemptive or other similar
rights of any securityholder of the Company. Upon deposit by the Company
of any Preferred Stock represented by Depositary Shares with the
Depositary and the execution and delivery of the Depositary Receipts
evidencing such Depositary Shares pursuant to the terms of the Deposit
Agreement, the persons in whose names such Depositary Receipts are
registered will be entitled to the proportional rights, preferences and
limitations of the Preferred Stock represented by the Depositary Shares
evidenced by such Depositary Receipts and to such other rights as are
granted to such registered holder in such Deposit Agreement. The form of
certificate used to evidence the Underwritten Securities is in due and
proper form and complies in all material respects with all applicable
statutory requirements.
B-2
47
(xii) If the Underwritten Securities being sold pursuant to this
Agreement and the applicable Terms Agreement include Warrants, such
Underwritten Securities have been duly authorized for issuance and sale
pursuant to this Agreement and such Terms Agreement. The Warrants, when
executed, countersigned and delivered in the manner provided for in the
Warrant Agreement and issued and paid for in accordance with this
Agreement and the applicable Terms Agreement, will constitute valid and
binding obligations of the Company entitled to the benefits of the Warrant
Agreement and enforceable against the Company in accordance with their
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law); each registered holder thereof is
entitled to the benefits of the Warrant Agreement; and the Warrants are
exercisable for Common Stock in accordance with their terms and the terms
of the Warrant Agreement.
(xiii) If the Underwritten Securities being sold pursuant to this
Agreement and the applicable Terms Agreement include Debt Securities, such
Underwritten Securities have been duly authorized by the Operating
Partnership for issuance and sale pursuant to this Agreement and such
Terms Agreement. The Debt Securities, when issued and authenticated in the
manner provided for in the Indenture and delivered against payment of the
consideration therefor specified in such Terms Agreement, constitutes
valid and legally binding obligations of the Operating Partnership,
enforceable against the Operating Partnership in accordance with their
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law); and the Debt Securities, in the forms
certified on the date hereof, are in the form contemplated by, and each
registered holder thereof is entitled to the benefits of, the Indenture.
(xiv) If applicable, the Underlying Securities have been duly
authorized and reserved for issuance upon such exercise or conversion by
the Company and, when issued upon such exercise or conversion, will be
validly issued, fully paid and non-assessable and will not be subject to
preemptive or other similar rights.
(xv) If the Underwritten Securities being sold pursuant to this
Agreement and the applicable Terms Agreement include Depositary Shares or
Warrants, the applicable Deposit Agreement or the applicable Warrant
Agreement, as the case may be, has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution and
delivery thereof by the Depositary or the Warrant Agent, as the case may
be, constitutes a valid and binding agreement of the Company enforceable
against the Company in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent
B-3
48
transfers), reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law); and the applicable Deposit Agreement or
the Warrant Agreement, as the case may be, conforms in all material
respects to the statements relating thereto contained in the Prospectus
and is substantially in the form filed or incorporated by reference, as
the case may be, as an exhibit to the Registration Statement.
(xvi) If the Underwritten Securities being sold pursuant to this
Agreement and the applicable Terms Agreement include Debt Securities, the
Indenture has been duly authorized, executed and delivered by the
Operating Partnership and, assuming due authorization, execution and
delivery thereof by the Trustee, constitutes a valid and legally binding
agreement of the Operating Partnership, enforceable against the Operating
Partnership in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(xvii) The Indenture has been duly qualified under the 1939 Act; and
the Indenture conforms in all material respects to the statements relating
thereto contained in the Prospectus and is substantially in the form filed
or incorporated by reference, as the case may be, as an exhibit to the
Registration Statement.
(xviii) If the Underwritten Securities being sold pursuant to this
Agreement and the applicable Terms Agreement include Debt Securities in
the form of MandatOry Par Put Remarketed SecuritiesSM, the Remarketing
Agreement (as defined in the Prospectus) has been duly authorized,
executed and delivered by the Operating Partnership and the Company and,
assuming due authorization, execution and delivery thereof by the
Remarketing Dealer (as defined in the Prospectus), constitutes a valid and
legally binding agreement of the Operating Partnership and the Company,
enforceable against the Operating Partnership and the Company in
accordance with its terms; and the Remarketing Agreement conforms in all
material respects to the statements relating thereto contained in the
Prospectus and is substantially in the form filed or incorporated by
reference, as the case may be, as an exhibit to the Registration
Statement.
(xix) The Underwritten Securities being sold pursuant to this
Agreement and the applicable Terms Agreement, and any Underlying
Securities, when issued and delivered in accordance with the terms of the
related Underwritten Securities, conform in all material respects to the
statements relating thereto contained in the Prospectus; and the form of
certificate used to evidence the Underwritten Securities is in due and
proper form and complies in all material respects with all applicable
statutory requirements.
B-4
49
(xx) The Registration Statement has been declared effective under
the 1933 Act and, to the best of our knowledge and information, no stop
order suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act or proceedings therefor initiated or threatened
by the Commission.
(xxi) The Registration Statement and the Prospectus and each
amendment or supplement to the Registration Statement and Prospectus,
excluding the documents incorporated by reference therein, as of their
respective effective or issue dates, comply as to form in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations; it being understood, however, that no opinion need be
rendered with respect to the financial statements, supporting schedules
and other financial data included or incorporated by reference in or
excluded from the Registration Statement or the Prospectus and the
Trustee's Statement of Eligibility on Form T-1. If applicable, the Rule
434 Prospectus conforms to the requirements of Rule 434 under the 1933 Act
Regulations.
(xxii) Each document filed pursuant to the 1934 Act (other than the
financial statements, supporting schedules and other financial data
included therein or excluded therefrom, as to which no opinion need be
rendered) and incorporated or deemed to be incorporated by reference in
the Prospectus complied when so filed as to form in all material respects
with the 1934 Act and the 1934 Act Regulations.
(xxiii) To the best our knowledge, no authorization, approval or
consent of any court or governmental authority or agency is required that
has not been obtained in connection with the consummation by the Company,
the Operating Partnership or any of their respective subsidiaries of the
transactions contemplated by this Agreement or the Terms Agreement, and,
if applicable, the Indenture, the Remarketing Agreement, the Deposit
Agreement or the Warrant Agreement, or the consummation of the
transactions contemplated herein and therein, except such as may be
required under the 1933 Act or the 1933 Act Regulations, the 1934 Act or
the 1934 Act Regulations, the 1939 Act or the 1939 Act Regulations, state
securities laws, real estate syndication laws or under the rules and
regulations of the NASD.
(xxiv) The Company, the Operating Partnership and any of their
respective subsidiaries are not, and upon the issuance and sale of the
Underwritten Securities as herein contemplated and the application of the
net proceeds therefrom as described in the Prospectus will not be, an
"investment company" within the meaning of the Investment Company Act of
1940, as amended.
(xxv) If the Underwritten Securities being sold pursuant to this
Agreement and the applicable Terms Agreement include Common Stock,
Preferred Stock and Depositary Shares, there are no persons with
registration rights or other similar rights to have any securities
registered pursuant to the Registration Statement or otherwise registered
by the Company or the Operating Partnership under the 1933 Act.
B-5
50
(xxvi) Commencing with the Company's first taxable year ended
December 31, 1993, the Company has been organized in conformity with the
requirements for qualifications as a REIT under the Code and the Company's
method of operation will enable it to meet the requirements for taxation
as a REIT under the Code.
(xxvii) The statements set forth in the Prospectus under the
captions "Description of Debt Securities," "Description of Common Stock,"
"Description of Preferred Stock," "Description of Depositary Shares, "
"Description of Warrants" and "Federal Income Tax Considerations," or any
caption purporting to cover such matters, and the statements set forth in
the Prospectus Supplement under the caption "Description of the Offered
Securities" and "Certain United States Federal Income Tax Considerations,"
or any caption purporting to cover such matters, and the information in
the Registration Statement under Item 15 relating to indemnification of
officers and directors, to the extent such statements or information
constitute matters of law, or legal conclusions, have been reviewed by us
and are correct in all material respects.
(xxviii) To the best of our knowledge, there are no legal or
governmental proceedings pending or threatened against the Company, the
Operating Partnership or any of their respective subsidiaries which are
required to be disclosed in the Prospectus, other than those disclosed
therein, and all pending legal or governmental proceedings to which the
Company, the Operating Partnership or any of their respective subsidiaries
is a party or of which any of the Properties or assets of the Company, the
Operating Partnership or any of their respective subsidiaries is the
subject which are not described in the Prospectus, including ordinary
routine litigation incidental to the business, are, considered in the
aggregate, not material.
(xxix) To the best of our knowledge, there are no contracts,
indentures, mortgages, loan agreements, notes, leases or other instruments
required to be described or referred to in the Registration Statement or
the Prospectus or to be filed as exhibits thereto 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, and, to the best of our knowledge and information, no default
exists in the due performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument so described,
referred to or filed.
(xxx) The execution and delivery of this Agreement, the applicable
Terms Agreement, and, if applicable, the Indenture, the Remarketing
Agreement, the Deposit Agreement or the Warrant Agreement and any other
agreement or instrument entered into or issued or to be entered into or
issued by the Company, the Operating Partnership or any of their
respective subsidiaries in connection with the transactions contemplated
in the Prospectus, and the consummation of the transactions contemplated
herein and therein and compliance by each of the Company, the Operating
Partnership or any of their respective subsidiaries with its obligations
hereunder and thereunder will not conflict with or constitute
B-6
51
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 their respective subsidiaries
pursuant to any contract, indenture, mortgage, loan agreement known to us,
to which the Company, the Operating Partnership or any of their respective
subsidiaries is a party or by which it or any of them may be bound or to
which any of the Properties or assets of the Company, the Operating
Partnership or any of their respective subsidiaries is subject, nor will
such action result in violation of the provisions of the charter, by-laws,
agreement of limited partnership or other organizational documents of the
Company, the Operating Partnership or any of their respective subsidiaries
or any applicable law, administrative regulation or administrative or
court order or decree known to us.
B-7
52
EXHIBIT C
FORM OF ACCOUNTANT'S COMFORT LETTER PURSUANT TO SECTION 5(f)
We are independent public accountants with respect to the Company and the
Operating Partnership within the meaning of the 1933 Act and the 1933 Act
Regulations and:
(i) in our opinion, the audited consolidated financial statements
and the related financial statement schedules included or incorporated by
reference in the Registration Statement and the Prospectus comply as to
form in all material respects with the applicable accounting requirements
of the 1933 Act and the 1933 Act Regulations;
(ii) on the basis of procedures (but not an examination in
accordance with generally accepted auditing standards) consisting of a
reading of the unaudited interim consolidated financial statements of the
Company and the Operating Partnership for the [three- month periods ended
_________, 19__ and _________, 19__, the three- and six-month periods
ended _________, 19__ and _________, 19__ and the three- and nine-month
periods ended _________, 19__ and _________, 19__, included or
incorporated by reference in the Registration Statement and the Prospectus
(collectively, the "10-Q Financials")] [, a reading of the unaudited
interim consolidated financial statements of the Company and the Operating
Partnership for the _____-month periods ended _________, 19___ and
_________, 19___, included or incorporated by reference in the
Registration Statement and the Prospectus (the "_____-month financials")]
[, a reading of the latest available unaudited interim consolidated
financial statements of the Company and the Operating Partnership], a
reading of the minutes of all meetings of the stockholders and directors
of the Company and the Operating Partnership and its subsidiaries and
committees thereof since [day after end of last audited period], inquiries
of certain officials of the Company and the Operating Partnership and its
subsidiaries responsible for financial and accounting matters, a review of
interim financial information in accordance with standards established by
the American Institute of Certified Public Accountants in Statement on
Auditing Standards No. 71, Interim Financial Information ("SAS 71"), with
respect to the [description of relevant periods] and such other inquiries
and procedures as may be specified in such letter, nothing came to our
attention that caused us to believe that:
(A) the 10-Q Financials included or incorporated by reference
in the Registration Statement and the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the 1934 Act and the 1934 Act Regulations applicable
to unaudited financial statements included in Form 10-Q or any
material modifications should be made to the 10-Q Financials
included or incorporated by reference in the Registration
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Statement and the Prospectus for them to be in conformity with
generally accepted accounting principles;
[(B) the _____-month financials included or incorporated by
reference in the Registration Statement and the Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations
applicable to unaudited interim financial statements included in
registration statements or any material modifications should be made
to the _____-month financials included in the Registration Statement
and the Prospectus for them to be in conformity with generally
accepted accounting principles;]
(C) at [_________, 19___ and at] a specified date not more
than three days prior to the date of the applicable Terms Agreement,
there was any change in the capital stock of the Company and the
Operating Partnership and its subsidiaries, any decrease in the net
assets of the Company and the Operating Partnership and its
subsidiaries or any increase in the debt of the Company and the
Operating Partnership and its subsidiaries, in each case as compared
with amounts shown in the most recent consolidated balance sheet
included or incorporated by reference in the Registration Statement
and the Prospectus, except in each case for any changes, decreases
or increases that the Registration Statement and the Prospectus
disclose have occurred or may occur; or
(D) for the period from [_________, 19__ to _________, 19__
and for the period from] _________, 19__ to a specified date not
more than three days prior to the date of the applicable Terms
Agreement, there was any decrease in consolidated revenue, operating
income, funds from operation or net income or net income per share
of the Company and the Operating Partnership, in each case as
compared with the comparable period in the preceding year, except in
each case for any decreases that the Registration Statement and the
Prospectus discloses have occurred or may occur;
[(iii) based upon the procedures set forth in clause (ii) above and
a reading of the Selected Financial Information included or incorporated
by reference in the Registration Statement and the Prospectus [and a
reading of the financial statements from which such data were derived],
nothing came to our attention that caused us to believe that the Selected
Financial Information included or incorporated by reference in the
Registration Statement and the Prospectus do not comply as to form in all
material respects with the disclosure requirements of Item 301 of
Regulation S-K of the 1933 Act [, that the amounts included in the
Selected Financial Information are not in agreement with the corresponding
amounts in the audited consolidated financial statements for the
respective periods or that the financial statements not included or
incorporated by reference in the Registration Statement and the
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54
Prospectus from which certain of such data were derived are not in
conformity with generally accepted accounting principles;]
(iv) we have compared the information included or incorporated by
reference in the Registration Statement and the Prospectus under selected
captions with the disclosure requirements of Regulation S-K of the 1933
Act and on the basis of limited procedures specified herein, nothing came
to our attention that caused us to believe that such information does not
comply as to form in all material respects with the disclosure
requirements of Items 302, 402 and 503(d), respectively, of Regulation
S-K;
[(v) based upon the procedures set forth in clause (ii) above, a
reading of the latest available unaudited financial statements of the
Company and the Operating Partnership that have not been included or
incorporated by reference in the Registration Statement and the Prospectus
and a review of such financial statements in accordance with SAS 71,
nothing came to our attention that caused us to believe that the unaudited
amounts for ________ for the [most recent period] do not agree with the
amounts set forth in the unaudited consolidated financial statements for
those periods or that such unaudited amounts were not determined on a
basis substantially consistent with that of the corresponding amounts in
the audited consolidated financial statements;]
[(vi) we are unable to and do not express any opinion on the [Pro
Forma Combined Balance Sheet and Statement of Operations] (collectively,
the "Pro Forma Statements") included or incorporated by reference in the
Registration Statement and the Prospectus or on the pro forma adjustments
applied to the historical amounts included in the Pro Forma Statements;
however, for purposes of this letter we have:
(A) read the Pro Forma Statements;
(B) performed [an audit] [a review in accordance with SAS 71]
of the financial statements to which the pro forma adjustments were
applied;
(C) made inquiries of certain officials of the Company and the
Operating Partnership who have responsibility for financial and
accounting matters about the basis for their determination of the
pro forma adjustments and whether the Pro Forma Statements comply as
to form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X; and
(D) proved the arithmetic accuracy of the application of the
pro forma adjustments to the historical amounts in the Pro Forma
Statements; and
on the basis of such procedures and such other inquiries and procedures as
specified herein, nothing came to our attention that caused us to believe
that the Pro Forma Statements
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included or incorporated by reference in the Registration Statement and
the Prospectus do not comply as to form in all material respects with the
applicable requirements of Rule 11-02 of Regulation S-X or that the pro
forma adjustments have not been properly applied to the historical amounts
in the compilation of those statements;]
(vii) in addition to the procedures referred to in clause (ii)
above, we have performed other procedures, not constituting an audit, with
respect to certain amounts, percentages, numerical data and financial
information included or incorporated by reference in the Registration
Statement and the Prospectus, which are specified herein, and have
compared certain of such items with, and have found such items to be in
agreement with, the accounting and financial records of the Company and
the Operating Partnership; and
[(viii) in addition, we [add comfort on a financial forecast that is
included or incorporated by reference in the Registration Statement and
the Prospectus].
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