Exhibit 1.1
EXECUTION VERSION
COLONIAL REALTY LIMITED PARTNERSHIP
(a Delaware Limited Partnership)
Debt Securities
UNDERWRITING AGREEMENT
July 31, 2002
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
BEAR, XXXXXXX & CO. INC.
XXXXX FARGO BROKERAGE SERVICES, LLC
x/x XXXXXXX XXXXX & XX.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
World Financial Center
Xxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Ladies and Gentlemen:
Colonial Realty Limited Partnership, a limited partnership organized
under the laws of the State of Delaware (the "Operating Partnership"), proposes
to issue and sell debt securities ("Securities"), from time to time, in one or
more offerings on terms to be determined at the time of sale. The Securities
will be issued under an indenture dated as of July 22, 1996 and a first
supplemental indenture dated as of December 31, 1998 between the Operating
Partnership and Deutsche Bank Trust Company Americas (formerly known as Bankers
Trust Company), as trustee (collectively, the "Indenture"). Colonial Properties
Trust, an Alabama real estate investment trust (the "Company"), is a limited
partner and the general partner of the Operating Partnership. As used herein,
"you" and "your", unless the context otherwise requires, shall mean the parties
to whom this underwriting agreement (this "Agreement") is addressed together
with the other parties, if any, identified in the applicable Terms Agreement (as
defined herein) as additional co-managers with respect to Underwritten
Securities (as hereinafter defined) purchased pursuant thereto.
Whenever the Operating Partnership determines to make an offering of
Securities through you or through an underwriting syndicate managed by you, the
Operating Partnership will enter into an agreement (the "Terms Agreement")
providing for the sale of such Securities (the "Underwritten Securities") to,
and the purchase and offering thereof by, you and such other underwriters, if
any, selected by you as have authorized you to enter into such Terms Agreement
on their behalf (the "Underwriters", which term shall include you whether acting
alone in the
sale of the Underwritten Securities or as a member of an underwriting syndicate
and any Underwriter substituted pursuant to Section 10 hereof). The Terms
Agreement relating to the offering of Underwritten Securities shall specify the
principal amount of Underwritten Securities of each series to be issued (the
"Underwritten Securities"), the names of the Underwriters participating in such
offering (subject to substitution as provided in Section 10 hereof), the
principal amount of Underwritten Securities which each such Underwriter
severally agrees to purchase, the names of such of you or such other
Underwriters acting as co-managers, if any, in connection with such offering,
the price at which the Underwritten Securities are to be purchased by the
Underwriters from the Operating Partnership, the initial public offering price,
if any, the time, date and place of delivery and payment, any delayed delivery
arrangements and any other variable terms of the Underwritten Securities
(including but not limited to, aggregate principal amount, maturity date,
interest rate or formula and timing of payments thereof, current ratings,
conversion, exchange or redemption provisions and any other variable terms which
the Indenture contemplates may be set forth in the 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 you and the Operating Partnership. Each offering of Underwritten
Securities through you or through an underwriting syndicate managed by you will
be governed by this Agreement, as supplemented by the applicable Terms
Agreement.
The Operating Partnership has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-37922, which also constitutes a post-effective amendment to a previous
registration statement No. 333-42049 pursuant to Rule 429 of the 1933 Act
Regulations (as defined below)) for the registration of up to $400,000,000 of
the Operating Partnership's debt 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 Operating Partnership has
filed such amendments thereto as may have been required prior to the execution
of the applicable Terms Agreement. Such registration statements (as amended, if
applicable) have been declared effective by the Commission and the Indenture
qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act").
Such registration statements and the prospectus constituting a part thereof, in
each case as supplemented by a prospectus supplement relating to the offering of
Underwritten Securities (the "Prospectus Supplement"), including in each case
all documents incorporated therein by reference as of the date of the Prospectus
Supplement and as of the applicable Closing Time (as defined below), and the
information, if any, deemed to be a part thereof pursuant to Rule 430A(b) or
Rule 434 of the 1933 Act Regulations as from time to time amended or
supplemented pursuant to the 1933 Act, the Securities Exchange Act of 1934, as
amended (the "1934 Act"), or otherwise, are collectively referred to herein as
the "Registration Statement" and the "Prospectus", respectively; PROVIDED,
HOWEVER, that a Prospectus Supplement shall be deemed to have supplemented the
Prospectus only with respect to the offering of Underwritten Securities to which
it relates. All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include the
filing of any document under the 1934 Act which is or is
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deemed to be incorporated by reference in the Registration Statement or the
Prospectus, as the case may be. If the Operating Partnership elects to rely on
Rule 434 under the 1933 Act Regulations, all references to the Prospectus shall
be deemed to include, without limitation, the form of prospectus and the
abbreviated term sheet, taken together, provided to the Underwriters by the
Operating Partnership in reliance on Rule 434 under the 1933 Act (the "Rule 434
Prospectus"). If the Operating Partnership files a registration statement to
register a portion of the debt securities and relies on Rule 462(b) for such
registration statement to become effective upon filing with the Commission (the
"Rule 462 Registration Statement"), then any reference to "Registration
Statement" herein shall be deemed to be the registration statement referred to
above (No. 333-37922) and the Rule 462 Registration Statement, as each such
registration statement may be amended pursuant to the 1933 Act.
Section 1. REPRESENTATIONS AND WARRANTIES.
(a) The Operating Partnership represents and warrants to you, as of the
date hereof, and to you and each other Underwriter named in the applicable Terms
Agreement, as of the date thereof (in each case, a "Representation Date") and as
of each Closing Time (as hereinafter defined), as follows:
(i) The Registration Statement and the Prospectus, at the time
the Registration Statement became effective and at each time thereafter
on which 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 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 the
Operating Partnership files an Annual Report on Form 10-K with the
Commission and as of each Representation Date, and at the Closing Time,
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 Operating Partnership in
writing by any Underwriter through you expressly for use in the
Registration Statement or Prospectus or to that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification under the 1939 Act (Form T-1) of the
trustee under the Indenture.
(ii) 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;
and there have been no disagreements with any accountants or
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"reportable events" (as defined in Item 304 of Regulation S-K
promulgated by the Commission), in either case as required to be
disclosed in the Prospectus or elsewhere pursuant to such Item 304.
(iii) The historical financial statements of the Operating
Partnership included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the financial position of
the Operating Partnership and its consolidated subsidiaries as at the
dates indicated and the results of operations for the periods
specified; except as otherwise stated in the Registration Statement and
the Prospectus, said financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis and comply with the applicable accounting requirements
of the 1933 Act (including, without limitation, Rule 3-14 of Regulation
S-X promulgated by the Commission), and all adjustments necessary for a
fair presentation of the 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 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.
(iv) The historical summaries of revenue and certain operating
expenses included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the revenue and those
operating expenses included in such summaries of the properties related
thereto for the periods specified in conformity with generally accepted
accounting principles.
(v) 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 Operating Partnership and its
Subsidiaries (which term, as used in this Agreement, includes
majority-owned corporations, partnerships and other entities, including
Colonial Properties Services Limited Partnership (the "Management
Partnership") and Colonial Properties Services, Inc. (the "Management
Corporation"), and includes direct and indirect Subsidiaries, if any)
considered as one enterprise, or any of the real property or
improvements thereon owned by either the Operating Partnership or any
of its 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 material condemnation or
other material adverse event with respect to any of the Properties has
occurred, and (c) there have been no transactions entered into by the
Operating Partnership or any of its Subsidiaries, other than those in
the ordinary course of business, which are material with respect to the
Operating Partnership, and its Subsidiaries considered as one
enterprise.
(vi) The Agreement of Limited Partnership of the Operating
Partnership, as amended and restated (the "Agreement of Limited
Partnership"), has been duly and validly authorized, executed and
delivered by the Company, as general partner of the Operating
Partnership, and is a valid and binding agreement of the Company and
such
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limited partners of the Operating Partnership, enforceable in
accordance with its terms, except as limited by (a) the effect of
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to or affecting the rights or
remedies of creditors or (b) the effect of general principles of
equity, whether enforcement is considered in a proceeding in equity or
at law, and the discretion of the court before which any proceeding
therefor may be brought. The Operating Partnership has been duly formed
and is validly existing and is in good standing under the laws of the
State of Delaware, has power and authority to own, lease and operate
its Properties and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify 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 Operating Partnership and its Subsidiaries
considered as one enterprise.
(vii) Each Subsidiary of the Operating Partnership has been
duly formed and is validly existing and in good standing under the laws
of the jurisdiction of its organization, has power and authority to
own, lease and operate its Properties and to conduct its business as
described in the Prospectus and is duly qualified to transact business
and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify 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 Operating
Partnership and its Subsidiaries considered as one enterprise. Except
as otherwise stated in the Prospectus, all of the issued and
outstanding capital stock or other ownership interests in each such
Subsidiary have been duly authorized and validly issued, are fully paid
and non-assessable and are owned by the Operating Partnership, directly
or through Subsidiaries, 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 Operating
Partnership or any of its Subsidiaries and described in the Prospectus.
(viii) Each of the partnership agreements to which the
Operating Partnership or any of its Subsidiaries is a party has been
duly authorized, executed and delivered by the parties thereto and
constitutes the valid agreement thereof, enforceable in accordance with
its terms, except as limited by (a) the effect of bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting the rights or remedies of
creditors or (b) the effect of general principles of equity, whether
enforcement is considered in a proceeding in equity or at law, and the
discretion of the court before which any proceeding therefor may be
brought; and the execution, delivery and performance of any of such
agreements by the Operating Partnership or any of its Subsidiaries, as
applicable, did not, at the time of execution and delivery, and does
not constitute a breach of, or default under, the charter, by-laws,
partnership agreement (or other organizational documents) of such party
or any material contract, lease or other instrument to which such party
is a party or by which its
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properties may be bound or any law, administrative regulation or
administrative or court decree.
(ix) The authorized, issued and outstanding liabilities and
partners' capital of the Operating Partnership is as set forth in the
applicable prospectus supplement under "Capitalization."
(x) The Underwritten Securities being sold pursuant to this
Agreement and the applicable Terms Agreement have, as of each
Representation Date, been duly authorized by the Operating Partnership,
and such Underwritten Securities have been duly authorized for issuance
and sale pursuant to this Agreement and such Terms Agreement and the
Indenture, and such Underwritten Securities, when issued and delivered
by the Operating Partnership pursuant to this Agreement against payment
of the consideration set forth in such Terms Agreement or any Delayed
Delivery Contract (as hereinafter defined), will be valid and legally
binding obligations of the Operating Partnership, enforceable in
accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency or other similar laws relating to or
affecting creditors' rights generally and by general equity principles
(regardless of whether enforcement is considered in a proceeding in
equity or at law); and the Underwritten Securities being sold pursuant
to the applicable Terms Agreement conform in all material respects to
all statements relating thereto contained in the Prospectus.
(xi) The Indenture has been duly authorized, executed and
delivered by the Operating Partnership and constitutes a valid and
legally binding agreement of the Operating Partnership enforceable in
accordance with its terms, except as enforcement thereof may be limited
by bankruptcy, insolvency or other similar laws relating to or
affecting creditors' rights generally and by general equity principles
(regardless of whether enforcement is considered in a proceeding in
equity or at law).
(xii) None of the Operating Partnership or any of its
Subsidiaries is in violation of its charter, by-laws, partnership
agreement or other organizational documents or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Operating
Partnership or any of its 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
Operating Partnership or any of its 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 Operating Partnership and
its Subsidiaries considered as one enterprise, and the execution,
delivery and performance of this Agreement, the applicable Terms
Agreement or the Indenture, and the consummation of the transactions
contemplated herein and therein and compliance by the Operating
Partnership with obligations hereunder and thereunder have been duly
authorized by all necessary corporate, trust or partnership action, and
will not materially conflict with or constitute a material breach of,
or material default under, or result in the creation or imposition of
any material lien, charge or encumbrance upon any property or assets of
the Operating Partnership or any of its Subsidiaries pursuant to, any
contract, indenture, mortgage, loan agreement, note, lease
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or other instrument to which the Operating Partnership or any of its
Subsidiaries is a party or by which any of them may be bound, or to
which any of the property or assets of the Operating Partnership or any
of its Subsidiaries is subject, nor will such action result in any
violation of the charter, by-laws, the partnership agreement or other
organizational documents of the Operating Partnership or any of its
Subsidiaries, or any applicable law, administrative regulation or
administrative or court decree.
(xiii) None of the Operating Partnership or any of its
Subsidiaries is required to be registered as an "investment company"
under the Investment Company Act of 1940, as amended (the "1940 Act").
(xiv) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Operating Partnership or any of its
Subsidiaries threatened against or affecting the Operating Partnership
or any of its 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
Operating Partnership and its Subsidiaries considered as one
enterprise, or which might materially and adversely affect the property
or assets thereof or which might materially and adversely affect the
consummation of this Agreement, the applicable Terms Agreement, or the
Indenture, or the transactions contemplated herein or therein; all
pending legal or governmental proceedings to which the Operating
Partnership or any of its Subsidiaries is a party or of which any
property or assets of the Operating Partnership or any of its
Subsidiaries is subject which are not described in the Prospectus,
including ordinary routine litigation incidental to the business, are,
considered in the aggregate, not material to the condition, financial
or otherwise, or the earnings, business affairs or business prospects
of the Operating Partnership and its Subsidiaries considered as one
enterprise; and there are no contracts or documents of the Operating
Partnership or any of its 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.
(xv) The Operating Partnership and its Subsidiaries own or
possess any trademarks, service marks, trade names or copyrights
required in order to conduct their respective businesses as described
in the Prospectus, other than those the failure to possess or own would
not have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of
the Operating Partnership and its Subsidiaries considered as one
enterprise.
(xvi) No authorization, approval, permit or consent of any
court or governmental authority or agency is necessary in connection
with the consummation by the Operating Partnership of the transactions
contemplated by this Agreement, the applicable Terms Agreement, or the
Indenture, except such as have been obtained or as may be required
under the 1933 Act or the 1933 Act Regulations, the 1939 Act, state
securities laws, real estate syndication laws or under the rules and
regulations of the National Association of Securities Dealers, Inc.
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(xvii) The Operating Partnership and its Subsidiaries possess
such certificates, authorizations or permits issued by the appropriate
state, federal or foreign regulatory agencies or bodies necessary to
conduct their respective businesses as described in the Prospectus,
other than those the failure to possess or own would not have a
material adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Operating
Partnership and its Subsidiaries considered as one enterprise, and
neither the Operating Partnership nor any of its Subsidiaries has
received any 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 Operating Partnership and its Subsidiaries considered
as one enterprise.
(xviii) The Operating Partnership has full right, power and
authority under its organizational documents to enter into this
Agreement and the applicable Terms Agreement and the Delayed Delivery
Contracts, 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 Operating Partnership.
(xix) The documents incorporated or deemed to be incorporated
by reference in the Prospectus, 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), 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.
(xx) There are no persons with registration or other similar
rights to have any securities registered pursuant to the Registration
Statement.
(xxi) None of the Operating Partnership or any of its
Subsidiaries, or any of the officers, directors, trustees or partners
thereof has taken nor will any of them take, directly or indirectly,
any action resulting in a violation of Regulation M under the 1934 Act
or designed to cause or result in, or which has constituted or which
reasonably might be expected to constitute, the stabilization or
manipulation of the price of the Underwritten Securities or
facilitation of the sale or resale of the Underwritten Securities.
(xxii) Except as otherwise disclosed in the Prospectus and
except as would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Operating Partnership and its Subsidiaries considered
as one enterprise: (a) except for the portions of Macon Mall, Bel Air
Mall and Fashion Square Mall that are leased by the Operating
Partnership pursuant to long-
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term subordinated ground leases, the Operating Partnership or its
Subsidiaries have good and marketable title in fee simple to all real
property and improvements described in the Prospectus as being owned in
fee and, at the Closing Time, the Operating Partnership and its
Subsidiaries will have good and marketable title in fee simple to all
real property and improvements as described in the Prospectus as being
owned in fee; (b) all liens, charges, encumbrances, claims or
restrictions on or affecting the real property and improvements owned
by the Operating Partnership or any of its Subsidiaries which are
required to be disclosed in the Prospectus are disclosed therein; (c)
none of the Operating Partnership or any of its Subsidiaries, or to the
knowledge of the Operating Partnership, any lessee of any portion of
the real property or improvements owned by the Operating Partnership or
any of its Subsidiaries, is in default under any of the leases pursuant
to which the Operating Partnership or any of its Subsidiaries leases
such real property or improvements, and the Operating Partnership and
its Subsidiaries know of no event which, but for the passage of time or
the giving of notice, or both, would constitute a default under any of
such leases; (d) all the real property and improvements owned by the
Operating Partnership or its Subsidiaries comply with all applicable
codes and zoning laws and regulations; and (e) the Operating
Partnership and its Subsidiaries have no knowledge of any pending or
threatened condemnation, zoning change or other proceeding or action
that would in any manner affect the size of, use of, improvements on,
construction on, or access to any of the real property or improvements
owned by the Operating Partnership, any of its Subsidiaries or the
Operating Partnership.
(xxiii) The Operating Partnership or its Subsidiaries has
adequate title insurance on each Property owned in fee by the Operating
Partnership or its Subsidiaries.
(xxiv) Except as otherwise disclosed in the Prospectus, the
Operating Partnership has no knowledge of: (a) the unlawful presence of
any hazardous substances, hazardous materials, toxic substances or
waste materials (collectively, "Hazardous Materials") on any of the
Properties or (b) any unlawful spills, releases, discharges or disposal
of Hazardous Materials that have occurred or are presently occurring on
or from the Properties as a result of any construction on or operation
and use of the Properties, which presence or occurrence would have a
material adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Operating
Partnership and its Subsidiaries considered as one enterprise; and in
connection with the construction on or operation and use of the
Properties, 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 generation, recycling, reuse, sale,
storage, handling, transport and disposal of any Hazardous Materials
that could have a material adverse effect on the condition, financial
or otherwise, or the earnings, business affairs or business prospects
of the Operating Partnership and its Subsidiaries considered as one
enterprise.
(b) Any certificate signed by any officer of the Company in such
capacity or as general partner of the Operating Partnership and delivered to you
or to counsel for the Underwriters in connection with the offering of the
Underwritten Securities shall be deemed a representation and warranty by the
Operating Partnership, as the case may be, to each
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Underwriter participating in such offering as to the matters covered thereby on
the date of such certificate.
Section 2. PURCHASE AND SALE.
(a) 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) Payment of the purchase price for, and delivery of, the
Underwritten Securities to be purchased by the Underwriters shall be made at the
office of Sidley Xxxxxx Xxxxx & Xxxx LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, or at such other place as shall be agreed upon by you and the Operating
Partnership, at 9:00 A.M., New York City time, on the third business day (unless
postponed in accordance with the provisions of Section 10) following the date of
the applicable Terms Agreement or, if pricing takes place after 4:30 p.m. New
York City time on the date of the applicable Terms Agreement, on the fourth
business day (unless postponed in accordance with the provisions of Section 10)
following the date of the applicable Terms Agreement or at such other time as
shall be agreed upon by you and the Operating Partnership (each such time and
date being referred to as a "Closing Time"). Unless otherwise specified in the
applicable Terms Agreement, payment shall be made by wire transfer of
immediately available funds to the Operating Partnership against delivery to you
for the respective accounts of the Underwriters for the Underwritten Securities
to be purchased by them. The Underwritten Securities shall be in such authorized
denominations and registered in such names as you may request in writing at
least one business day prior to the applicable Closing Time or Date of Delivery,
as the case may be. The Underwritten Securities, which may be in temporary form,
will be made available for examination and packaging by you on or before the
first business day prior to the Closing Time or Date of Delivery, as the case
may be.
(c) If authorized by the applicable Terms Agreement, the Underwriters
named therein may solicit offers to purchase Underwritten Securities from the
Operating Partnership pursuant to delayed delivery contracts ("Delayed Delivery
Contracts") substantially in the form of Exhibit B hereto with such changes
therein as the Operating Partnership may approve. As compensation for arranging
Delayed Delivery Contracts, the Operating Partnership will pay to you at Closing
Time, for the respective accounts of the Underwriters, a fee specified in the
applicable Terms Agreement for each of the Underwritten Securities for which
Delayed Delivery Contracts are made at the Closing Time as is specified in the
applicable Terms Agreement. Any Delayed Delivery Contracts are to be with
institutional investors of the types described in the Prospectus. At the Closing
Time, the Operating Partnership will enter into Delayed Delivery Contracts (for
not less than the minimum principal amount of Underwritten Securities per
Delayed Delivery Contract specified in the applicable Terms Agreement) with all
purchasers proposed by the Underwriters and previously approved by the Operating
Partnership as provided below, but not for an aggregate principal amount of
Underwritten Securities in excess of that specified in the applicable Terms
Agreement. The Underwriters will not have any responsibility for the validity or
performance of Delayed Delivery Contracts.
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You shall submit to the Operating Partnership, at least two business
days prior to the Closing Time, the names of any institutional investors with
which it is proposed that the Operating Partnership will enter into Delayed
Delivery Contracts and the number of Underwritten Securities to be purchased by
each of them, and the Operating Partnership will advise you, at least two
business days prior to the Closing Time, of the names of the institutions with
which the making of Delayed Delivery Contracts is approved by the Operating
Partnership and the number of Underwritten Securities to be covered by each such
Delayed Delivery Contract.
The principal amount of Underwritten Securities agreed to be purchased
by the several Underwriters pursuant to the applicable Terms Agreement shall be
reduced by the principal amount of Underwritten Securities covered by Delayed
Delivery Contracts, as to each Underwriter as set forth in a written notice
delivered by you to the Operating Partnership; PROVIDED, HOWEVER, that the total
principal amount of Underwritten Securities to be purchased by all Underwriters
shall be the total principal amount of Underwritten Securities covered by the
applicable Terms Agreement, less the principal amount of Underwritten Securities
covered by Delayed Delivery Contracts.
Section 3. COVENANTS OF THE OPERATING PARTNERSHIP. The Operating
Partnership covenants with you, and with each Underwriter participating in the
offering of Underwritten Securities, as follows:
(a) Immediately following the execution of the applicable Terms
Agreement, the Operating Partnership will prepare a Prospectus Supplement
setting forth the principal amount 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 principal amount 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 Operating Partnership, the initial public offering price, if any, the
selling concession and reallowance, if any, any delayed delivery arrangements,
and such other information as you and the Operating Partnership deem appropriate
in connection with the offering of the Underwritten Securities; and the
Operating Partnership will, by the close of business in New York on the business
day immediately succeeding the date of the applicable Terms Agreement, 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 you shall reasonably request. If the Operating Partnership elects
to rely on Rule 434 under the 1933 Act Regulations, the Operating Partnership
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.
11
(b) The Operating Partnership will notify you 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 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 Operating Partnership will give you 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 Operating Partnership
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 furnish you with
copies of any such amendment or supplement a reasonable amount of time prior to
such proposed filing or preparation, as the case may be, and will not file or
prepare any such amendment or supplement or other documents in a form to which
you or counsel for the Underwriters shall reasonably object.
(d) 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 documents incorporated or deemed to be
incorporated by reference therein) as such Underwriter reasonably requests.
(e) The Operating Partnership 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 exist as a result of which it is
necessary, in the reasonable opinion of counsel for the Underwriters or counsel
for 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
12
the reasonable 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 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 with such
requirements, and the Operating Partnership will furnish to the Underwriters a
reasonable number of copies of such amendment or supplement.
(g) The Operating Partnership will endeavor, in cooperation with the
Underwriters, to qualify the Underwritten 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 you may designate. In
each jurisdiction in which the Underwritten Securities have been so qualified,
the Operating Partnership 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 Operating Partnership shall not be
obligated to (A) qualify as a foreign entity in any jurisdiction where it is not
so qualified, (B) file any general consent to service of process, or (C) take
any action that would subject it to income taxation in any such jurisdiction.
(h) With respect to each sale of Underwritten Securities, the Operating
Partnership will make generally available to its security holders as soon as
practicable, but not later than 90 days after the close of the period covered
thereby, an earnings statement (in form complying with the provisions of Rule
158 of the 1933 Act Regulations) covering a twelve month period beginning not
later than the first day of the Operating Partnership's fiscal quarter next
following the "effective date" (as defined in such Rule 158) of the Registration
Statement.
(i) 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.
(j) Between the date of the applicable Terms Agreement and the
completion of distribution of the Underwritten Securities or such other date
specified in such Terms Agreement, the Operating Partnership will not, without
the prior written consent of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
("Xxxxxxx Xxxxx"), directly or indirectly, issue, sell, offer to sell, grant any
option for the sale of, or otherwise dispose of, the securities specified in the
Terms Agreement.
Section 4. PAYMENT OF EXPENSES. The Operating Partnership will pay all
expenses incident to the performance of its obligations under this Agreement or
the applicable Terms Agreement, including (i) the printing and filing of the
Registration Statement as originally filed and of each amendment thereto, (ii)
the reproduction and filing of this Agreement and the applicable Terms
Agreement, (iii) the preparation, issuance and delivery of the Underwritten
Securities to the Underwriters, (iv) the fees and disbursements of the Operating
Partnership's counsel and accountants, (v) the qualification of the Underwritten
Securities, under securities
13
laws and real estate syndication laws in accordance with the provisions of
Section 3(g), including filing fees and the fees and disbursements of counsel
for the Underwriters in connection therewith and in connection with the
preparation of any Blue Sky Survey (if applicable), (vi) the reproduction and
delivery to the Underwriters of copies of any Blue Sky Survey (if applicable),
(vii) the printing and delivery to the Underwriters of copies of the
Registration Statement as originally filed and of each amendment thereto, each
preliminary prospectus and of the Prospectus and any amendments or supplements
thereto, (viii) any fees charged by nationally recognized statistical rating
organizations for the rating of the Securities, (ix) the fees and expenses, if
any, incurred with respect to the listing of the Underwritten Securities on any
national securities exchange, (x) the fees and expenses, if any, incurred with
respect to any filing with the National Association of Securities Dealers, Inc.
(if applicable) and (xi) any applicable fees and expenses of the Trustee in
connection with the Indenture and the Underwritten Securities.
If the applicable Terms Agreement is terminated by you in accordance
with the provisions of Section 5, Section 9(b)(i) or 9(b)(ii), the Operating
Partnership shall reimburse the Underwriters named in such Terms Agreement 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 several
obligations of the Underwriters to purchase Underwritten Securities pursuant to
the applicable Terms Agreement are subject to the accuracy of the
representations and warranties of the Operating Partnership herein contained, to
the accuracy of the statements of the Company's officers, and on behalf of the
Company in its capacity as general partner of the Operating Partnership, made in
any certificate pursuant to the provisions hereof, to the performance by the
Operating Partnership of all of its covenants and other obligations hereunder,
and to the following further conditions:
(a) At Closing Time and at any Date of Delivery, (i) no stop order
suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act or proceedings therefor initiated or threatened by the
Commission, (ii) at Closing Time, 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
Operating Partnership 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 have not
occurred a downgrading in the rating assigned to the Underwritten Securities or
any of the Operating Partnership's other securities or any of the Company's
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 Operating Partnership's
other securities or any of the Company's securities, and (iii) there shall not
have come to your attention any facts that would reasonably cause you to believe
that the Prospectus, together with the applicable Prospectus Supplement, at the
time it was required to be delivered to purchasers of the Underwritten
Securities, included an untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements therein, in light of
the circumstances existing at such time, not misleading.
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(b) At Closing Time, you shall have received:
(1) The favorable opinion, dated as of Closing Time, of Xxxxx
& Xxxxxxx L.L.P., counsel for the Company and the Operating
Partnership, in form and substance satisfactory to counsel for the
Underwriters, to the effect that:
(i) The Company has been duly organized and is
validly existing as a real estate investment trust under the
laws of the State of Alabama. Based solely on the certificates
of public officials, the Company is authorized to transact
business in the States of Florida and Georgia as of the dates
of the respective certificates specified in such opinion.
(ii) The Management Corporation was incorporated and
is validly existing under the laws of the State of Alabama.
The Management Corporation is authorized to transact business
in the State of Florida as of the date of the certificate
specified in such opinion.
(iii) Each of the Operating Partnership and the
Management Partnership was formed and is validly existing as a
partnership under the laws of the State of Delaware as of the
dates of the respective certificates specified in such
opinion. Each of the Operating Partnership and the Management
Partnership is in good standing under the laws of the State of
Delaware as of the dates of the respective certificates
specified in such opinion. Based solely on certificates of
public officials, each of the Operating Partnership and the
Management Partnership is registered to do business in
Alabama, and the Operating Partnership is authorized to
transact business in the States of Florida and Georgia as of
the dates of the respective certificates specified in such
opinion. The Management Partnership is authorized to transact
business in the State of Florida as of the date of the
certificate specified in such opinion.
(iv) Each of the Company and the Management
Corporation has full trust or corporate power to own, lease or
operate the Properties and to conduct its business as
described in the Prospectus. The Management Partnership has
the partnership power and partnership authority under its
partnership agreement and the Delaware Revised Uniform Limited
Partnership Act (the "Delaware Act") to conduct its business
as described in the Prospectus. The Operating Partnership has
the partnership power and partnership authority under the
Agreement of Limited Partnership and the Delaware Act to own,
lease and operate the Properties and to conduct its business
as described in the Prospectus.
(v) Each of this Agreement, the applicable Terms
Agreement and the Delayed Delivery Contracts, if any, has been
duly authorized, executed and delivered by the Operating
Partnership.
15
(vi) The issuance and sale of the Underwritten
Securities being sold pursuant to this Agreement and the
applicable Terms Agreement have been duly and validly
authorized by all necessary corporate action on the part of
the Operating Partnership; and such Underwritten Securities,
when issued, authenticated and delivered in accordance with
the Indenture and against payment of the consideration set
forth in such Terms Agreement or any Delayed Delivery
Contract, will be entitled to the benefits of the Indenture
and will constitute valid and binding obligations of the
Operating Partnership enforceable in accordance with their
terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other similar laws relating to or
affecting creditors' rights generally and by general equity
principles (regardless of whether enforcement is considered in
a proceeding in equity or at law).
(vii) The Indenture has been duly authorized,
executed and delivered by the Operating Partnership, and,
assuming due authorization, execution and delivery by the
Trustee, constitutes a valid and binding obligation of the
Operating Partnership enforceable in accordance with its
terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other similar laws relating to or
affecting creditors' rights generally and by general equity
principles (regardless of whether enforcement is considered in
a proceeding in equity or at law).
(viii) Except as set forth in the Prospectus, to such
counsel's knowledge, based on an officer's certificate from
the Company as general partner of the Operating Partnership,
there are no proceedings before or by any court, governmental
agency, or arbitrator pending or threatened against the
Operating Partnership or any of its Subsidiaries which, if
determined adversely to the Operating Partnership or any of
its Subsidiaries, would have a material adverse effect on the
financial condition, results of operations or business of the
Operating Partnership and its Subsidiaries, considered as one
enterprise.
(ix) The Registration Statement became effective
under the 1933 Act as of the date specified in such opinion,
the Indenture has been qualified under the 1939 Act, the
required filing of the Prospectus pursuant to Rule 424 of the
1933 Act Regulations has been made in the manner and within
the time period required by Rule 424(b), and, to such
counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceeding for that purpose is pending or has been
threatened by the Commission.
(x) The Registration Statement and the Prospectus,
excluding the documents incorporated by reference therein, as
of their respective effective or issue dates (other than the
financial statements and supporting schedules included therein
or omitted therefrom, and other financial information and data
included therein or omitted therefrom, as to which
16
such counsel need not express an opinion) complied as to form
in all material respects with the requirements for
registration statements on Form S-3 under the 1933 Act, the
1939 Act, the 1933 Act Regulations and the 1939 Act
Regulations.
(xi) The documents incorporated by reference in the
Prospectus (other than the financial statements and supporting
schedules and other financial information and data included
therein or omitted therefrom, as to which such counsel need
not express an opinion), when they became effective or were
filed with the Commission, as the case may be, complied as to
form in all material respects with the requirements of the
1934 Act and the rules and regulations promulgated thereunder.
(xii) The Underwritten Securities conform in all
material respects to the description thereof contained in the
Prospectus and the Prospectus Supplement.
(xiii) The execution, delivery and performance as of
the date hereof by the Operating Partnership of this Agreement
and the Terms Agreement, do not (i) result in a breach of or a
default under any of the agreements filed as Exhibits 10.1,
10.2.1, 10.2.2, 10.2.3, 10.2.4, 10.2.5, 10.2.6, 10.2.7,
10.2.8, 10.2.9, 10.2.10, 10.2.11, 10.2.12, 10.2.13, 10.13 and
10.13.1 to the Company's Annual Report on Form 10-K for the
year ended December 31, 2001, (ii) violate the provisions of
the declaration of trust, articles of incorporation, charter,
partnership agreement or by-laws of the Company, the Operating
Partnership, the Management Partnership or the Management
Corporation, or (iii) to such counsel's knowledge, violate any
order, statute, rule or regulation of any federal or Delaware
court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of the
Properties. The foregoing opinion shall not be deemed to
address any federal securities law matters specifically
covered elsewhere in such counsel's opinion letter. Except for
the registration of the Underwritten Securities under the 1933
Act and the qualification of the Indenture under the 1939 Act
and such filings, consents, approvals, authorizations,
registrations or qualifications as have been made or obtained
prior to the date of such counsel's opinion, or may be
required under the 1934 Act, the Investment Company Act of
1940, as amended ("xxx 0000 Xxx") and applicable state
securities laws (as to which such counsel need not express an
opinion) in connection with the purchase and distribution of
the Underwritten Securities, no consent, approval,
authorization or order of, or filing or registration with, the
Commission or any Delaware court or governmental agency or
body is required to be obtained or made by the Operating
Partnership for the execution, delivery and performance as of
the date hereof of this Agreement and the applicable Terms
Agreement by the Operating Partnership, and the consummation
of the transactions contemplated hereby and thereby.
17
(xiv) Neither the Operating Partnership nor any of
its Subsidiaries is an "investment company" as such term is
defined in the 0000 Xxx.
(2) The favorable opinion, dated as of Closing Time, of
Xxxxxxx, Xxxxxx & Xxxxx, P.C., special real estate counsel to the
Company and Operating Partnership and, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(i) The issuance and sale of the Underwritten
Securities being delivered on such Date of Delivery by the
Operating Partnership and the compliance by the Operating
Partnership with all the provisions of this Agreement and the
consummation of the transactions contemplated hereby did not
and will not result in a breach or violation of any of the
terms of provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any of the Properties or any other properties
or assets of the Operating Partnership or any of its
Subsidiaries pursuant to, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known
to such counsel to which the Operating Partnership or any of
its Subsidiaries is a party or by which the Operating
Partnership or any of its Subsidiaries is bound or to which
any of the Properties is subject.
(ii) The descriptions of or references to any
contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments 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, are correct in all
material respects, and, to the best of their 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 which would have a material adverse
effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the
Operating Partnership and its Subsidiaries considered as one
enterprise.
(3) The favorable opinion, dated as of Closing Time, of Sidley
Xxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, with respect to
the matters set forth in v to x, inclusive, of subsection (b)(1).
(4) In giving their opinions required by subsections (b)(1),
(b)(2) and (b)(3), respectively, of this Section, Xxxxx & Xxxxxxx
L.L.P., Xxxxxxx, Xxxxxx & Xxxxx, P.C. and Sidley Xxxxxx Xxxxx & Xxxx
LLP shall each additionally state that no facts have has come to their
attention which causes them to believe that the Registration Statement
(except for financial statements and 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
18
Report on Form 10-K has been filed by 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 and schedules and other
financial data, as to which 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. Xxxxx &
Xxxxxxx L.L.P. shall additionally state that no facts have come to
their attention which causes them to believe that, (x) there are any
legal or governmental proceedings pending or threatened against the
Operating Partnership that are required to be disclosed in the
Registration Statement or the Prospectus, other than those disclosed
therein, or (y) there are any contracts entered into by the Company or
the Operating Partnership after July 30, 1997 of a character required
to be described in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement that are not
described or referred to therein or so filed; PROVIDED THAT in making
the foregoing statements (which shall not constitute an opinion), such
counsel need not express any views as to the financial statements
and supporting schedules and other financial data included in or
omitted from the Registration Statement or the Prospectus. In
giving their opinions required by subsections (b)(1), (b)(2) and
(b)(3), respectively, of this Section, Xxxxx & Xxxxxxx L.L.P., Xxxxxxx,
Xxxxxx & Xxxxx, P.C. and Sidley Xxxxxx 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 Operating
Partnership, (2) with respect to certain other matters, upon
certificates of appropriate government officials in such jurisdiction,
and Xxxxx & Xxxxxxx L.L.P. and Sidley Xxxxxx Xxxxx & Xxxx LLP may
additionally rely, as to matters involving the laws of the State of
Alabama, upon the opinion of Sirote & Permutt P.C. (Alabama counsel for
the Company and the Operating Partnership) in form and substance
satisfactory to counsel for the Underwriters.
(5) The favorable opinion, dated as of Closing Time, of Sirote
& Permutt P.C. (or other counsel reasonably satisfactory to counsel for
the Underwriters), in form and substance satisfactory to counsel for
the Underwriters, relating to the matters of Alabama law.
(c) At Closing Time and any relevant Date of Delivery, 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 Operating Partnership
and its Subsidiaries considered as one enterprise, or any of the Properties,
whether or not arising in the ordinary course of business; no proceedings shall
be pending or, to the knowledge of the
19
Operating Partnership, threatened against the Operating Partnership, any of its
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 Operating Partnership and its Subsidiaries,
considered as one enterprise or any of the Properties; and you shall have
received a certificate of the President and Chief Executive Officer or a Vice
President of the Company and of the Senior Vice President and Secretary of the
Company in its capacity as 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 with the same force and effect as though such Closing Time were a
Representation Date. As used in this Section 5(c), the term "Prospectus" means
the Prospectus in the form first used to confirm sales of the Underwritten
Securities.
(d) At the time of the execution of the applicable Terms Agreement, you
shall have received a letter dated such date from PricewaterhouseCoopers LLP, in
form and substance reasonably satisfactory to you, to the effect that (i) they
are independent public accountants with respect to the Operating Partnership
within the meaning of the 1933 Act and the 1933 Act Regulations thereunder; (ii)
it is their opinion that the consolidated financial statements and financial
statement schedules of the Operating Partnership included or incorporated by
reference in the Registration Statement and the Prospectus and audited by them
and covered by their opinions therein comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations; (iii) they have performed limited procedures, not constituting an
audit, including a reading of the latest available unaudited interim
consolidated financial statements of the Operating Partnership, a reading of the
minute books of the Operating Partnership, inquiries of certain officials of the
Operating Partnership who have responsibility for financial and accounting
matters and such other inquiries and procedures as may be specified in such
letter, and on the basis of such limited review and procedures (which shall
include, without limitation, the procedures specified by the American Institute
of Certified Public Accountants for a review of interim financial information as
described in SAS No. 71, Interim Financial Information, with respect to the
unaudited condensed consolidated financial statement of the Operating
Partnership included or incorporated by reference in the Registration
Statement), nothing has come to their attention which causes them to believe (A)
that any material modifications should be made to the unaudited condensed
financial statements of the Operating Partnership included in the Registration
Statement for them to be in conformity with generally accepted accounting
principles or that such unaudited financial statements do not comply as to form
in all material respects with the applicable accounting requirements of the 1934
Act and the 1934 Act Regulations, or (B) at a specified date not more than three
days prior to Closing Time, there has been any change in capital stock, increase
in long-term debt or decrease in consolidated partners' capital of the Operating
Partnership, as compared with the amounts shown in the most recent consolidated
balance sheet included or incorporated by reference in the Registration
Statement and the Prospectus or, during the period from the date of the most
recent consolidated statement of operations included or incorporated by
reference in the Registration Statement and the Prospectus to a specified date
not more than three days prior to Closing Time, there were any decreases, as
compared with the corresponding period in the preceding year, in consolidated
revenues, operating income, net income or in the total or per unit amounts of
income before extraordinary items or of net income of the Operating Partnership,
except in all instances for changes, increases or decreases which the
Registration Statement and
20
the Prospectus disclose have occurred or may occur; (iv) they have compared the
information in the Prospectus under selected captions with the disclosure
requirements of Regulation S-K and on the basis of limited procedures specified
in such letter nothing came to their attention as a result of the foregoing
procedures that caused them to believe that this information does not conform in
all material respects with the disclosure requirements of Items 301 and 302,
respectively, of Regulation S-K; and (v) in addition to the examination referred
to in their opinion and the limited procedures referred to in clause (iii)
above, they have carried out certain specified procedures, not constituting an
audit, with respect to certain amounts, percentages and financial information
which are included or incorporated by reference in the Registration Statement
and Prospectus and which are specified by you, and have found such amounts,
percentages and financial information to be in agreement with the relevant
accounting, financial and other records of the Operating Partnership identified
in such letter.
(e) At Closing Time, you shall have received a letter, dated as of
Closing Time, from PricewaterhouseCoopers LLP, to the effect that they reaffirm
the statements made in the letter furnished pursuant to subsection (d) of this
Section, except that the "specified date" referred to shall be a date not more
than three days prior to such Closing Time.
(f) At Closing Time, 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 and related proceedings, or in
order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all proceedings
taken by the 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 you and counsel for the Underwriters.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, the applicable Terms Agreement
may be terminated by you by notice to the Operating Partnership at any time at
or prior to the Closing Time, as the case may be, and such termination shall be
without liability of any party to any other party except as provided in Section
4 hereof.
Section 6. INDEMNIFICATION. (a) The Operating Partnership hereby agrees
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 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
information deemed to be part of the Registration Statement pursuant to
Rule 430A(b) or Rule 434 of the 1933 Act Regulations, if applicable, or
the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus (or any
amendment or supplement thereto) or the omission, or alleged omission
therefrom of a material
21
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 of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, if such
settlement is effected with the written consent of the indemnifying
party; and
(3) against any and all expense whatsoever (including, the
fees and disbursements of counsel chosen by you) reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceedings by any governmental agency or body,
commenced or threatened, or any claim whatsoever 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 furnished to the Operating
Partnership by any Underwriter through you expressly for use in the Registration
Statement (or any amendment thereto) and the Prospectus (or any amendment or
supplement thereto) or to that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification under the 1939 Act
(Form T-1) of the trustee under the Indenture; and provided further that the
Operating Partnership will not be liable to any Underwriter with respect to the
Prospectus to the extent that the Operating Partnership shall sustain the burden
of proving that any such loss, liability, claim, damage or expense resulted from
the fact that such Underwriter, in contravention of the requirement of this
Agreement or applicable law, sold Securities to a person to whom such
Underwriter failed to send or give, at or prior to the time of such sale, a copy
of the Prospectus, as then amended or supplemented if: (i) the Operating
Partnership has previously furnished copies thereof to the Underwriter and such
Prospectus was required by law to be delivered at or prior to the written
confirmation of sale to such person and (ii) such failure to give or send such
Prospectus to the party or parties asserting such loss, liability, claim, damage
or expense at or prior to the written confirmation of sale would have
constituted the sole claim asserted by such person.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Operating Partnership, each officer who signed the Registration Statement
and each person, if any, who controls the Operating Partnership within the
meaning of Section 15 of the 1933 Act, against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or
any amendment thereto) or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Operating Partnership by such Underwriter through you
22
expressly for use in the Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of such
action. If it so elects within a reasonable time after receipt of such notice,
an indemnifying party, jointly with any other indemnifying parties receiving
such notice, may assume the defense of such action with counsel chosen by it and
approved by the indemnified parties defendant in such action, unless such
indemnified parties reasonably object to such assumption on the ground that
there may be legal defenses available to them which are different from or in
addition to those available to such indemnifying party. In case of such
reasonable objection, an indemnified party may select its own counsel and one
local counsel, whose fees shall be paid by the indemnifying party. If an
indemnifying party assumes the defense of such action, the indemnifying parties
shall not be liable for any fees and expenses of counsel for the indemnified
parties incurred thereafter in connection with such action. In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances.
(d) For purposes of this Section 6, all references to the Registration
Statement, any preliminary prospectus or the Prospectus, or any amendment or
supplement to any of the foregoing, shall be deemed to include, without
limitation, any electronically transmitted copies thereof, including, without
limitation, any copies filed with the Commission pursuant to XXXXX.
Section 7. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Operating Partnership and
the Underwriters with respect to the offering of the Underwritten Securities
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by the
Operating Partnership and one or more of the Underwriters in respect of such
offering, as incurred, in such proportions that the Underwriters are responsible
for that portion represented by the percentage that the underwriting discount
appearing on the cover page of the Prospectus in respect of such offering bears
to the initial public offering price appearing thereon and the Operating
Partnership is responsible for the balance; PROVIDED, HOWEVER, that 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. 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 purchased by it pursuant to the applicable Terms Agreement 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 in respect of
such losses, liabilities, claims, damages and expenses. For
23
purposes of this Section, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as such Underwriter, and each trustee of the Company in its
capacity as general partner of the Operating Partnership, each officer who
signed the Registration Statement, and each person, if any, who controls the
Operating Partnership within the meaning of Section 15 of the 1933 Act shall
have the same rights to contribution as the Operating Partnership. The
Underwriter's obligations to contribute pursuant to this Section 7 are several
in proportion to their respective underwriting commitments 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 contained in certificates of
officers of the Operating Partnership submitted pursuant hereto, shall remain
operative and in full force and effect, regardless of any termination of this
Agreement or the applicable Terms Agreement, or investigation made by or on
behalf of any Underwriter or any controlling person, or by or on behalf of the
Operating Partnership, and shall survive delivery of and payment for the
Underwritten Securities.
Section 9. TERMINATION OF AGREEMENT. (a) This Agreement (excluding the
applicable Terms Agreement) may be terminated for any reason at any time by the
Operating Partnership or by you upon the giving of 30 days' written notice of
such termination to the other parties hereto.
(b) You may also terminate the applicable Terms Agreement, by notice to
the Operating Partnership, at any time at or prior to the Closing Time or any
Date of Delivery (i) if there has been, since the date of such 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 in the earnings, business affairs or business prospects of the
Operating Partnership or any of its Subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, or (ii) if the rating
assigned by any nationally recognized statistical rating organization to any
security of the Company or the Operating Partnership as of the date of the
applicable Terms Agreement shall have been lowered since such date or if any
such rating organization shall have publicly announced that it has placed any
security of the Company or the Operating Partnership on what is commonly termed
a "watch list" for possible downgrading; (iii) if there has occurred any
material adverse change in the financial markets in the United States or in the
international finance markets any outbreak of hostilities or escalation thereof
or other calamity or crisis the effect of which is such as to make it, in your
judgment (after notice to the Operating Partnership), impracticable or
inadvisable to market the Underwritten Securities or to enforce contracts for
the sale of the Underwritten Securities, or (iv) if trading in any of the
securities of the Company or the Operating Partnership 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 for securities have been required, by said exchanges or by order of the
Commission, the National Association of Securities Dealers, Inc. or any other
governmental authority, or a material disruption has occurred in commercial
banking or securities settlement or clearance services in the United States, or
(v) if a banking moratorium has been declared by either Federal, New York or
Alabama authorities. As used in this Section 9(b), the term
24
"Prospectus" means the Prospectus in the form first used to confirm sales of the
Underwritten Securities.
(c) In the event of any such termination, (x) the covenants set forth
in Section 3 with respect to any offering of Underwritten Securities shall
remain in effect so long as any Underwriter owns any such Underwritten
Securities purchased from the Operating Partnership pursuant to the applicable
Terms Agreement and (y) the covenant set forth in Section 3(h) hereof, the
provisions of Section 4 hereof, the indemnity and contribution agreements set
forth in Sections 6 and 7 hereof, and the provisions of Sections 8 and 13 hereof
shall remain in effect.
Section 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more
of the Underwriters shall fail at the Closing Time to purchase the Underwritten
Securities which it or they are obligated to purchase under the applicable Terms
Agreement (the "Defaulted Securities"), then you 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, you shall not have completed such
arrangements within such 24-hour period, then:
(a) if the total principal amount of Defaulted Securities does not
exceed 10% of the total principal amount of Underwritten Securities to be
purchased pursuant to such Terms Agreement, the non-defaulting Underwriters
named in such Terms Agreement shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the total principal amount of Defaulted Securities exceeds 10%
of the total principal amount of Underwritten Securities to be purchased
pursuant to such Terms Agreement, the applicable Terms Agreement shall terminate
without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default under this Agreement and
the applicable Terms Agreement.
In the event of any such default which does not result in a termination
of the applicable Terms Agreement, either you or the Operating Partnership shall
have the right to postpone the Closing Time 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 c/o Merrill Xxxxx & Co., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, World Financial Center, Xxxxx Xxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000, attention of Xxxx X. Case, Managing Director; and
notices to the Operating Partnership shall be directed to it at 0000 0xx Xxxxxx
Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx, 00000, attention: Chief Financial
Officer.
25
Section 12. PARTIES. This Agreement and the applicable Terms Agreement
shall each inure to the benefit of and be binding upon you, the Operating
Partnership and any Underwriter who becomes a party to such Terms Agreement, and
their respective successors. Nothing expressed or mentioned in this Agreement or
the applicable Terms Agreement is intended or shall be construed to give any
person, firm or corporation, other than those referred to in Sections 6 and 7
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 the applicable Terms
Agreement and all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the parties hereto and thereto and
their respective successors and said controlling persons and officers 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 the applicable
Terms Agreement shall be governed by and construed in accordance with the laws
of the State of New York applicable to agreements made and to be performed in
said State. Specified times of day refer to New York City time.
Section 14. COUNTERPARTS. This Agreement and the applicable Terms
Agreement may be executed in one or more counterparts, and if executed in more
than one counterpart the executed counterparts shall constitute a single
instrument.
26
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Operating Partnership a counterpart
hereof, whereupon this instrument, along with all counterparts will become a
binding agreement between you and the Operating Partnership in accordance with
its terms.
Very truly yours,
COLONIAL REALTY LIMITED PARTNERSHIP,
the Operating Partnership
By: Colonial Properties Trust
(its general partner)
By: /s/ XXXXXX X. XXXXXX, XX.
-----------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Chief Financial
Officer and Secretary
CONFIRMED AND ACCEPTED,
as of the date first
above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
BEAR, XXXXXXX & CO. INC.
XXXXX FARGO BROKERAGE SERVICES, LLC
By: Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By: /s/ XXXX X. CASE III
--------------------------------
Name: Xxxx X. Case III
Title: Managing Director
27
Exhibit A
COLONIAL REALTY LIMITED PARTNERSHIP
(a Delaware Limited Partnership)
Debt Securities
TERMS AGREEMENT
Dated: , 200_
To: COLONIAL REALTY LIMITED PARTNERSHIP
0000 0xx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx
Attention:
Dear Sirs:
We (the "Representative") understand that Colonial Realty Limited
Partnership, a Delaware limited partnership (the "Operating Partnership"),
proposes to issue and sell $_________ aggregate principal amount of its senior
debt securities (such debt securities being hereinafter referred to as the
"Underwritten Securities"). Subject to the terms and conditions set forth or
incorporated by reference herein, the underwriters named below (the
"Underwriters") offer to purchase, severally and not jointly, the respective
principal amounts of Underwritten Securities (as defined in the Underwriting
Agreement referenced below) set forth below opposite their respective names at
the purchase price set forth below.
28
PRINCIPAL AMOUNT OF
UNDERWRITER UNDERWRITTEN SECURITIES
----------- -----------------------
........................................................................ ---------------------
Total...................................................................
---------------------
The Underwritten Securities shall have the following terms:
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 Underwritten
Security: % of the principal amount, plus accrued interest
[amortized original issue discount], if any, from __________________.
Purchase price Underwritten Security: ____% of principal amount, plus accrued
interest [amortized original issue discount], if any, from _________________.
Form:
Other terms and conditions:
Closing date and location:
All the provisions contained in the document attached as Annex A hereto
entitled "
Colonial Realty Limited Partnership - 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.
29
Please accept this offer no later than nine o'clock P.M. (
New York City
time) on , 200_ 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 XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
BEAR, XXXXXXX & CO. INC.
XXXXX FARGO BROKERAGE SERVICES, LLC
By Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By ___________________________________
Acting on behalf of
themselves and the other
named Underwriters.
Accepted:
COLONIAL REALTY LIMITED PARTNERSHIP,
the Operating Partnership
By: Colonial Properties Trust
(its general partner)
By:
-----------------------------
Name:
Title:
30
Exhibit B
COLONIAL REALTY LIMITED PARTNERSHIP
(a Delaware Limited Partnership)
[Title of Securities]
DELAYED DELIVERY CONTRACT
, 200_
COLONIAL REALTY LIMITED PARTNERSHIP
0000 0xx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from Colonial Realty Limited
Partnership (the "Company"), and the Company agrees to sell to the undersigned
on __________, 19__ (the "Delivery Date"), of the Company's [insert title of
security] (the "Securities"), offered by the Company's Prospectus dated
__________, 19__, as supplemented by its Prospectus Supplement dated
___________, 19__, receipt of which is hereby acknowledged at a purchase price
of [$__________] [and, $__________ per Warrant, respectively] to the Delivery
Date, and on the further terms and conditions set forth in this contract.
Payment for the Securities which the undersigned has agreed to purchase
on the Delivery Date shall be made to the Company or its order by certified or
official bank check in Federal or other same day funds at the office of
, on the Delivery Date, upon delivery to the undersigned of the
Securities to be purchased by the undersigned in definitive form and in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than five
full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date shall be subject only to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company, on or before __________, 19__, shall
have sold to the Underwriters of the Securities (the "Underwriters") such
principal amount of the Securities as is to be sold to them pursuant to the
Terms Agreement dated __________, 19__ between the Company and the Underwriters.
The obligation of the undersigned to take delivery of and make payment for
Securities shall not be affected by the failure of any purchaser to take
delivery of and make payments for Securities pursuant to other contracts similar
to this contract. The undersigned represents and warrants to you that its
investment in the Securities is not, as of the date hereof, prohibited under the
laws of any jurisdiction to which the undersigned is subject and which govern
such investment.
31
Promptly after completion of the sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to the
Company that all necessary corporate action for the due execution and delivery
of this contract and the payment for and purchase of the Securities has been
taken by it and no further authorization or approval of any governmental or
other regulatory authority is required for such execution, delivery, payment or
purchase, and that, upon acceptance hereof by the Company and mailing or
delivery of a copy as provided below, this contract will constitute a valid and
binding agreement of the undersigned in accordance with its terms.
This contract will inure to the benefit of and binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed Delivery
Contracts for a number of Securities in excess of ________ and that the
acceptance of any Delayed Delivery Contract is in the Company's sole discretion
and, without limiting the foregoing, need not be on a first-come, first-served
basis. If this contract is acceptable to the Company, it is requested that the
Company sign the form of acceptance on a copy hereof and mail or deliver a
signed copy hereof to the undersigned at its address set forth below. This will
become a binding contract between the Company and the undersigned when such copy
is so mailed or delivered.
This Agreement shall be governed by the laws of the State of New York.
Yours very truly,
-----------------------------------
(Name of Purchaser)
By__________________________________
(Title)
------------------------------------
------------------------------------
(Address)
Accepted as of the date first above written.
COLONIAL REALTY LIMITED PARTNERSHIP,
the Operating Partnership
By: Colonial Properties Trust
(its general partner)
By:
------------------------------
Name:
Title:
32
PURCHASER-PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser
with whom details of delivery on the Delivery Date may be discussed are as
follows: (Please print.)
Telephone No.
(including
Name Area Code)
33
