CHATEAU COMMUNITIES, INC.
(a Maryland Corporation)
CP LIMITED PARTNERSHIP
(a Maryland limited partnership)
$100,000,000 8.50% Senior Notes due 2005
UNDERWRITING AGREEMENT
February 17, 2000
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION ("DLJ")
XXXXXX BROTHERS, INC.
c/x Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
CP Limited Partnership, a Maryland limited partnership (the "Operating
Partnership"), proposes to issue and sell $100,000,000 aggregate principal
amount of its 8.50% senior notes due 2005 (the "Debt Securities"), the terms of
which are set forth in Exhibit A hereto, to the several underwriters named in
Schedule I hereto (the "Underwriters").
The Debt Securities will be issued pursuant to the provisions of a
supplemental indenture dated as of the Closing Time (as defined herein) (the
"Supplemental Indenture") to the indenture dated as of December 19, 1997 (the
"Indenture") between the Operating Partnership and Bank One Trust Company, NA
(formerly, The First National Bank of Chicago), as trustee (the "Trustee").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Operating Partnership
agrees to issue and sell, and each Underwriter agrees, severally and not
jointly, to purchase from the Operating Partnership the principal amount of Debt
Securities set forth opposite the name of such Underwriter in Schedule I hereto
at the purchase price set forth on Exhibit A hereto (the "Purchase Price").
Chateau Communities, Inc., a Maryland corporation (the "Company"), and
the Operating Partnership have filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (Nos. 333-43981 and
000-00000-00, respectively) for the registration of the 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 Company and the Operating Partnership have filed such post-effective
amendments thereto as may be required prior to the date hereof. Such
registration statement (as so amended, if applicable) has been declared
effective by the Commission. Such registration statement is referred to herein
as the "Registration Statement"; and the final prospectus and the final
prospectus supplement relating to the offering of the Debt Securities, in the
form first furnished to the Underwriters by the Operating Partnership for use in
connection with the offering of the Debt Securities, are collectively referred
to herein as the "Prospectus"; provided, however, that all references to the
"Registration Statement" and the "Prospectus" shall also be deemed to include
all documents incorporated therein by reference pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act"), prior to the Closing Time.
For purposes of this Agreement, all references to the Registration Statement,
Prospectus or to any amendment or supplement to any of the foregoing shall be
deemed to include any copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system.
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" (or other
references of like import) in the Registration Statement or Prospectus shall be
deemed to mean and include all such financial statements and schedules and other
information which is incorporated by reference in the Registration Statement or
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement or Prospectus shall be
deemed to mean and include the filing of any document under the 1934 Act which
is incorporated by reference in the Registration Statement or Prospectus, as the
case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company and the Operating
Partnership. The Company and the Operating Partnership, jointly and severally,
represent and warrant to each of the Underwriters as of the date hereof and as
of the Closing Time, as follows:
(1) Compliance with Registration Requirements. The
Registration Statement, at the time the Registration Statement became
effective and at each time thereafter on which each of the Company and
the Operating Partnership filed an Annual Report on Form 10-K with the
Commission, did not, and at each time thereafter on which any amendment
to the Registration Statement becomes effective or each of the Company
and the Operating Partnership files an Annual Report on Form 10-K with
the Commission, 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 include an untrue statement
of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
furnished to the Company or the Operating Partnership in writing by the
Underwriters expressly for use in the Registration Statement or
Prospectus.
(2) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement
and the Prospectus (the "Incorporated Documents"), at the time they
were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the 1934 Act
and the rules and regulations of the Commission under the 1934 Act (the
"1934 Act Regulations"), and, when read together with the other
information in the Prospectus, at the time the Registration Statement
became effective and as of the Closing Time or during the period
specified in Section 3(f) hereof, did not and will not include an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(3) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included or incorporated
by reference in the Registration Statement and the Prospectus are
independent public accountants as required by the 1933 Act and the 1933
Act Regulations.
(4) Financial Statements. The historical consolidated
financial statements of each of the Operating Partnership and the
Company, including the related notes and schedules thereto, included or
incorporated by reference in the Registration Statement and the
Prospectus present fairly the financial position of the Operating
Partnership and the Company, respectively, as at the dates indicated
and the results of operations for the periods specified. If applicable,
the historical financial information including the notes thereto for
properties or other assets included in or incorporated by reference
into the Registration Statement and Prospectus present fairly the
stated financial information for such specific property or asset.
Except as otherwise stated in the Registration Statement, said
historical consolidated financial statements of the Operating
Partnership and the Company, respectively, and, if applicable, the
specific properties or other assets, have been prepared in conformity
with generally accepted accounting principles applied on a consistent
basis throughout the periods involved, and all adjustments necessary
for a fair presentation of results for such periods have been made. The
supporting schedules included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the
information required to be stated therein; and the selected financial
data (both historical and pro forma) included or incorporated by
reference in the Registration Statement and the Prospectus present
fairly the information shown therein and have been compiled on a basis
consistent with the related financial statements presented therein to
the extent derived from such financial statements.
(5) No Significant Subsidiaries. The Operating Partnership has
no "significant subsidiaries," as such term is defined in Rule 1-02 of
Regulation S-X promulgated under the 1933 Act.
(6) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, (a)
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise or the Operating Partnership and its subsidiaries considered
as one enterprise, or any of the real property or improvements thereon
owned by the Company, the Operating Partnership or any of their
respective subsidiaries (each individually, a "Property" and
collectively, the "Properties"), whether or not arising in the ordinary
course of business, (b) no material casualty loss or material
condemnation or other material adverse event with respect to any of the
Properties has occurred, (c) there have been no transactions entered
into or acquisitions by the Company, the Operating Partnership or any
of their respective subsidiaries, other than those in the ordinary
course of business or disclosed in the Prospectus, which are material
with respect to the Company and its subsidiaries considered as one
enterprise or the Operating Partnership and its subsidiaries considered
as one enterprise, and (d) except for regular quarterly distributions
on the Company's common stock and the Operating Partnership's common
and preferred units of limited partner interest, there has been no
dividend or distribution of any kind declared, paid or made by the
Company or any of its subsidiaries on any class of its capital stock or
by the Operating Partnership or any of its subsidiaries with respect to
its partnership interests or any class of its capital stock. As used in
this Agreement, the term subsidiary as it relates to the Operating
Partnership includes any corporation, limited liability company,
limited or general partnership, joint venture or other entity through
which the Operating Partnership owns a controlling interest, either
directly or indirectly, in a Property.
(7) Good Standing of the Company. The Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Maryland, with corporate power and
authority to own, lease and operate its Properties and to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under this Agreement and the Company is duly qualified
as a foreign corporation to transact business and is in good standing
in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or to be in good
standing would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise or the Operating Partnership and its subsidiaries considered
as one enterprise or the Properties, collectively; and, except for the
Operating Partnership, the Windsor Corporation, a California
corporation, and its parent and other corporations that hold 1% or
smaller interests in subsidiary partnerships, the Company owns no
material amounts of stock or other beneficial interest in any
corporation, limited liability company, partnership, joint ventures or
other business entity.
(8) Operating Partnership. The Amended and Restated Agreement
of Limited Partnership of the Operating Partnership (the "Partnership
Agreement") has been duly and validly authorized, executed and
delivered by the Company and is a valid and binding agreement,
enforceable against the Company, as general partner, in accordance with
its terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting creditors'
rights generally and by general principles of equity. To the Company's
knowledge, the Partnership Agreement has been duly executed and
delivered by the other parties thereto and is a valid and binding
agreement, enforceable against such parties in accordance with its
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting creditors'
rights generally and by general principles of equity. The Operating
Partnership has been duly formed and is validly existing as a limited
partnership, limited liability company or corporation, as the case may
be, in good standing under the laws of its state of organization with
partnership, limited liability company or corporate power and
authority, as the case may be, to own, lease and operate its
properties, to conduct the business in which it is engaged or proposes
to engage as described in the Prospectus and to enter into and perform
its obligations under this Agreement. The Operating Partnership is duly
qualified or registered as a foreign partnership, limited liability
company or corporation, as the case may be, and is in good standing in
each jurisdiction in which such qualification or registration is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify or
register would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise or the Operating Partnership and its subsidiaries considered
as one enterprise or the Properties, collectively. The Company owns,
directly and through ROC Communities (the other general partner of the
Operating Partnership), an approximate 89% general partner interest in
the Operating Partnership. Except as otherwise stated in the
Prospectus, all of the issued and outstanding capital stock or other
ownership interests in each subsidiary have been duly authorized and
validly issued, are fully paid and non-assessable and are owned by the
Operating Partnership, directly or indirectly, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity, except for security interests granted in respect of
indebtedness of the Company or the Operating Partnership or any of its
respective subsidiaries as described in the Prospectus and except for
security interests which would not have a material adverse effect on
the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company or any of its subsidiaries
considered as one enterprise or the Operating Partnership or any of its
subsidiaries considered as one enterprise or the Properties,
collectively.
(9) Authorization of this Agreement by the Company and the
Operating Partnership. The Company and the Operating Partnership have
the requisite authority to enter into this Agreement and this Agreement
has been duly authorized, executed and delivered by the Company and the
Operating Partnership.
(10) Authorization of Debt Securities. The Debt Securities
have been duly authorized by the Operating Partnership for issuance and
sale pursuant to this Agreement. The Debt Securities, when issued and
authenticated in the manner provided for in the Indenture and delivered
against payment of the consideration therefor, will constitute valid
and binding obligations of the Operating Partnership, enforceable
against the Operating Partnership in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally or by general
equitable principles (regardless of whether enforcement is considered
in a proceeding in equity or at law). The Debt Securities will be in
the form contemplated by, and each registered holder thereof is
entitled to the benefits of, the Indenture and the Supplemental
Indenture.
(11) Authorization of the Indenture. The Indenture has been
duly authorized, executed and delivered by the Operating Partnership
and, assuming due authorization, execution and delivery thereof by the
Trustee, constitutes a valid and binding agreement of the Operating
Partnership, enforceable against the Operating Partnership in
accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles (regardless of whether
enforcement is considered in a proceeding in equity or at law). The
Indenture has been duly qualified under the Trust Indenture Act of
1939, as amended (the "1939 Act"), and the rules and regulations of the
Commission under the 1939 Act (the "1939 Act Regulations").
(12) Descriptions of the Debt Securities. The Debt Securities
will conform in all material respects to the statements relating
thereto contained in the Prospectus and will be in substantially the
form filed or incorporated by reference, as the case may be, as an
exhibit to the Registration Statement.
(13) Absence of Defaults and Conflicts. Neither the Company
nor the Operating Partnership is in violation of its charter, by-laws,
agreement of limited liability company, agreement of limited
partnership or other organizational documents or in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other agreement or instrument to which
the Company or the Operating Partnership is a party or by which it or
any of them may be bound, or to which any of the property or assets of
the Company or the Operating Partnership is subject, except for any
such violation or default that would not have a material adverse effect
on the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and it subsidiaries
considered as one enterprise or the Operating Partnership and its
subsidiaries considered as one enterprise; and the execution, delivery
and performance of this Agreement and the Indenture and the
consummation of the transactions contemplated herein and therein and
compliance by the Company (with respect to this Agreement only) and the
Operating Partnership, each severally, with obligations hereunder and
thereunder have been duly authorized by all necessary action, and will
not conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or the Operating Partnership
pursuant to, any contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Company or the Operating
Partnership 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, except for any such violation or
default that would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise or the Operating Partnership and its subsidiaries considered
as one enterprise, nor will such action result in any violation of the
charter, by-laws, agreement of limited liability company, agreement of
limited partnership or other organizational documents of the Company or
the Operating Partnership or any applicable law, administrative
regulation or administrative or court decree, except for any such
violation or default that would not have a material adverse effect on
the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise or the Operating Partnership and its
subsidiaries considered as one enterprise.
(14) REIT Qualification. Commencing with the Company's first
taxable year ended December 31, 1993, the Company has been organized in
conformity with the requirements for qualification as a real estate
investment trust ("REIT") under the Internal Revenue Code of 1986, as
amended (the "Code"), and the Company's method of operation will enable
it to meet the requirements for taxation as a REIT under the Code.
(15) Absence of Proceedings. Other than as disclosed or
incorporated by reference into the Prospectus, there is no action, suit
or proceeding before or brought by any court or governmental agency or
body, domestic or foreign, now pending, or, to the knowledge of the
Company or the Operating Partnership, threatened against or affecting
the Company or the Operating Partnership which is required to be
disclosed in the Prospectus (other than as disclosed therein), or which
might result in any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise or the Operating Partnership and its subsidiaries considered
as one enterprise, or which might materially and adversely affect the
property or assets thereof and the Properties, collectively, or which
might materially and adversely affect the consummation of this
Agreement or the transactions contemplated herein or in the Indenture;
and all pending legal or governmental proceedings to which the Company
or the Operating Partnership is a party or of which any property or
assets of the Operating Partnership or the Properties is subject which
are not described in or incorporated by reference into the Prospectus,
including ordinary routine litigation incidental to the business, are,
considered in the aggregate, not material.
(16) Accuracy of Exhibits. There are no contracts or documents
of the Company or the Operating Partnership which are required to be
described in the Registration Statement, the Prospectus or the
documents incorporated by reference therein or to be filed as exhibits
thereto by the 1933 Act or by the 1933 Act Regulations which have not
been so described and filed as required.
(17) Absence of Further Requirements. No authorization,
approval or consent of any court or governmental authority or agency is
required that has not been obtained in connection with the consummation
by the Company or the Operating Partnership of the transactions
contemplated by this Agreement and the Indenture except such as may be
required under the 1933 Act or the 1933 Act Regulations, the 1934 Act
or the 1934 Act Regulations, the 1939 Act or the 1939 Act Regulations,
state securities laws, real estate syndication laws or under the rules
and regulations of the National Association of Securities Dealers, Inc.
(the "NASD").
(18) Possession of Intellectual Property. The Company, the
Operating Partnership and their respective subsidiaries are not
required to own or possess any trademarks, service marks, trade names
or copyrights in order to conduct the business to be operated by them.
(19) Possession of Licenses and Permits. Each of the Company,
the Operating Partnership and their respective subsidiaries possess, or
have made application for, such certificates, authorities or permits
issued by the appropriate state, federal or foreign regulatory agencies
or bodies necessary to conduct the businesses to be conducted by it,
except for such certificates, authorities or permits, the failure to
obtain, maintain or possess, would not materially and adversely affect
the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise or the Operating Partnership and its
subsidiaries considered as one enterprise; and the Company, the
Operating Partnership and any of their respective subsidiaries have not
received any written notice of proceedings relating to the revocation
or modification of any such certificate, authority or permit which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would materially and adversely affect the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise or the Operating Partnership and its subsidiaries considered
as one enterprise.
(20) Title to Property. (a) The Operating Partnership or its
subsidiaries, as the case may be, has good and marketable title to all
items of real property owned by them, in each case free and clear of
all liens, encumbrances, claims, security interests and defects, other
than those referred to in the Prospectus, mortgages on real property,
and those that would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects the Company and its subsidiaries considered as one
enterprise or of the Operating Partnership and its subsidiaries
considered as one enterprise; (b) all liens, charges, encumbrances,
claims, or restrictions on or affecting the properties and assets owned
by the Operating Partnership or any of its subsidiaries which are
required to be disclosed in the Prospectus are disclosed therein; (c)
except as disclosed in the Prospectus, none of the Company or the
Operating Partnership , or, to the best of the knowledge of the Company
and the Operating Partnership, any lessee under a lease relating to any
of the Properties, is in default under any of the leases relating to
the Properties and the Operating Partnership does not know of any event
which, but for the passage of time or the giving of notice, or both,
would constitute a default under any of such leases, except such
defaults that would not have a material adverse effect on the
condition, financial or otherwise, or on the earnings, business affairs
or business prospects the Company and its subsidiaries considered as
one enterprise or of the Operating Partnership and its subsidiaries
considered as one enterprise; (d) no tenant under any of the leases
pursuant to which the Operating Partnership or any of their respective
subsidiaries leases any of its real property or improvements has an
option to purchase the premises demised under such lease; (e) each of
the Properties is in compliance with all applicable codes and zoning
laws and regulations, except for such failures to comply which would
not individually or in the aggregate have a material adverse effect on
the condition, financial or otherwise, or on the earnings, business
affairs or business prospects of the Operating Partnership and its
subsidiaries considered as one enterprise; and (f) neither the Company
nor the Operating Partnership has knowledge of any pending or
threatened condemnation, zoning change, or other proceeding or action,
except such proceedings or actions that would not have a material
adverse effect on the condition, financial or otherwise, or on the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise or the Operating Partnership
and its subsidiaries considered as one enterprise.
(21) Title Insurance. The Operating Partnership or its
subsidiaries have obtained or have the benefit of title insurance on
all the Properties described in the Prospectus as owned by the
Operating Partnership or its subsidiaries in an amount as is customary
for companies engaged in business similar to the Operating Partnership
or its subsidiaries.
(22) Investment Company Act. The Company, the Operating
Partnership and any of their respective subsidiaries are not, and upon
the issuance and sale of the Debt Securities as herein contemplated and
the application of the net proceeds therefrom as described in the
Prospectus will not be, an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
(23) Environmental Laws. Except as disclosed in the
Prospectus, or the Incorporated Documents, each of the Company and the
Operating Partnership has no knowledge of (a) the unlawful presence of
any substance, material or waste which is regulated by any federal,
state or local governmental or quasi-governmental authority, including,
without limitation, (i) any substance, material or waste defined, used
or listed as a "hazardous waste", "extremely hazardous waste",
"restricted hazardous waste", "hazardous substance", "hazardous
material", "toxic substance" or other similar terms as defined or used
in any Environmental Law (as defined below), (ii) any petroleum
products, asbestos, polychlorinated biphenyls, lead-based paint,
flammable explosives or radioactive materials and (iii) any additional
substances or materials which are hazardous or toxic substances under
any Environmental Law relating to the Properties (collectively,
"Hazardous Materials") on any of the Properties or of (b) any spill,
release, discharge or disposal of Hazardous Materials that have
occurred or are presently occurring at, from or onto any of the
Properties or any properties near or adjacent to the Properties, which
presence or occurrence would materially adversely affect the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise or the Operating Partnership and its subsidiaries considered
as one enterprise. Except as disclosed in the Prospectus, in connection
with the construction on or operation and use of the Properties, the
Company and the Operating Partnership represent that the Operating
Partnership has no knowledge of any material failure to comply with all
applicable local, state and federal environmental laws, regulations,
ordinances and administrative and judicial orders relating to the use,
generation, recycling, reuse, sale, storage, handling, transport and
disposal of any Hazardous Materials (collectively, "Environmental
Laws") that would have a material adverse effect on the condition,
financial or otherwise, or on the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as
one enterprise or the Operating Partnership and its subsidiaries
considered as one enterprise.
(b) Officers' Certificates. Any certificate signed by any officer of
the Company in such capacity as general partner of the Operating Partnership or
any of its subsidiaries and delivered to any Underwriter or to counsel for the
Underwriters in connection with the offering of the Debt Securities shall be
deemed a representation and warranty by the Company or the Operating
Partnership, as the case may be, to each Underwriter as to the matters covered
thereby on the date of such certificate.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Debt Securities. The several commitments of the Underwriters to
purchase the Debt Securities pursuant to this Agreement, including Schedule I
attached hereto, 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. Payment of the Purchase Price for, and delivery of, the
Debt Securities shall be made at the offices of Xxxxxxxx Chance Xxxxxx & Xxxxx
LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or at such other place as shall
be agreed upon by DLJ and the Operating Partnership, at 10:00 A.M. (Eastern
time) on the fifth business day after the date hereof (unless postponed in
accordance with the provisions of Section 10 hereof), or such other time not
later than ten business days after such date as shall be agreed upon by DLJ and
the Operating Partnership (such time and date of payment and delivery being
herein called "Closing Time").
Payment shall be made to the Operating Partnership by wire transfer of
immediately available funds to a bank account designated by the Operating
Partnership, against delivery to DLJ for the respective accounts of the
Underwriters of the Debt Securities to be purchased by them. It is understood
that each Underwriter has authorized DLJ, for its account, to accept delivery
of, receipt for, and make payment of the Purchase Price for, the Debt Securities
which it has severally agreed to purchase. DLJ, individually and not as
representative of the Underwriters, may (but shall not be obligated to) make
payment of the Purchase Price for the Debt Securities to be purchased by any
Underwriter whose funds have not been received by the Closing Time, but such
payment shall not relieve such Underwriter from its obligations hereunder.
(c) Denominations; Registration. The Debt Securities shall be in such
denominations and registered in such names as DLJ may request in writing at
least one full business day prior to the Closing Time. A Form of the Debt
Securities will be made available for examination by DLJ in The City of New York
not later than 2:00 P.M. (Eastern time) on the business day prior to the Closing
Time.
SECTION 3. Covenants of the Company and the Operating Partnership. Each
of the Company and the Operating Partnership covenants with DLJ and with each
Underwriter participating in the offering of Debt Securities, as follows:
(a) The Operating Partnership will prepare a prospectus supplement (a
"Prospectus Supplement") setting forth the number of Debt Securities covered
thereby and their terms not otherwise specified in the Prospectus pursuant to
which the Debt Securities are being issued, the names of the Underwriters
participating in the offering and the number of Debt 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 Debt
Securities are to be purchased by the Underwriters from the Operating
Partnership, the initial public offering price, the selling concession and
reallowance, if any, any delayed delivery arrangements, and such other
information as DLJ and the Operating Partnership deem appropriate in connection
with the offering of the Debt Securities; and the Operating Partnership will, by
the close of business in New York on two business days immediately succeeding
the date hereof, transmit copies of the Prospectus, relating to the Debt
Securities, 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 DLJ shall reasonably
request.
(b) The Company or the Operating Partnership will notify DLJ
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 or other supplement or amendment to the Prospectus
or any document to be filed pursuant to the 1934 Act with respect to the
Registration Statement or the Prospectus relating to the Debt Securities, (iii)
the receipt of any comments from the Commission with respect to the Registration
Statement or the Prospectus relating to the Debt Securities, (iv) any request by
the Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectus, and (v) the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company and the Operating
Partnership will make every reasonable effort to prevent the issuance of any
such stop order and, if any stop order is issued, to obtain the lifting thereof
at the earliest possible moment.
(c) At any time when the Prospectus relating to the Debt Securities is
required to be delivered under the 1933 Act or the 1934 Act in connection with
sales of the Debt Securities, the Company or the Operating Partnership will give
DLJ 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 Debt 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, and will furnish DLJ 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 DLJ or counsel for
the Underwriters shall reasonably object.
(d) The Company or 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 Debt
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 Debt
Securities any event shall occur or condition shall exist as a result of which
it is necessary, in the opinion of counsel for the Underwriters or counsel for
the Operating Partnership, to amend or supplement the Prospectus in order that
the Prospectus will not include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of either
such counsel, at any such time to amend or supplement the Registration Statement
or the Prospectus in order to comply with the requirements of the 1933 Act or
the 1933 Act Regulations, then the Company or the Operating Partnership, as the
case may be, will promptly prepare and file with the Commission such amendment
or supplement, whether by filing documents pursuant to the 1933 Act, the 1934
Act or otherwise, as may be necessary to correct such untrue statement or
omission or to make the Registration Statement and Prospectus comply, in the
opinion of counsel to the Underwriters or Counsel to the Operating Partnership,
with such requirements, and the Company or the Operating Partnership, as the
case may be, 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 Debt 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 DLJ may designate; provided,
however, that the Operating Partnership shall not be obligated to qualify as a
foreign corporation in any jurisdiction where it is not so qualified. In each
jurisdiction in which the Debt 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 Debt Securities; provided, however, that
the Operating Partnership shall not be obligated to qualify as a foreign
corporation in any jurisdiction where it is not so qualified.
(h) The Operating Partnership will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement (in form complying
with the provisions of Rule 158 of the 1933 Act Regulations) for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(i) The Company will use its best efforts to meet the requirements to
qualify as a "real estate investment trust" under the Code for the taxable year
in which sales of the Debt Securities are to occur.
(j) The Operating Partnership will use the net proceeds received by it
from the sale of the Debt Securities in the manner specified in the Prospectus
under the caption "Use of Proceeds."
(k) The Company or 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 Debt 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.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company shall cause the Operating Partnership to pay
all expenses incident to the performance of its obligations under this
Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Agreement, any Agreement among
Underwriters, the Indenture and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the Debt
Securities, (iii) the preparation, issuance and delivery of the Debt Securities,
any certificates for the Debt Securities to the Underwriters, including any
transfer taxes and any stamp or other duties payable upon the sale, issuance or
delivery of the Debt Securities to the Underwriters, (iv) the fees and
disbursements of the Operating Partnership's counsel, accountants and other
advisors or agents (including transfer agents and registrars), as well as the
fees and disbursements of the Trustee and its counsel, (v) the qualification of
the Debt Securities under state securities laws and real estate syndication laws
in accordance with the provisions of Section 3(g) hereof, including filing fees
and the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation, printing and
delivery of the Blue Sky Survey, and any amendment thereto, (vi) the printing
and delivery to the Underwriters of copies of the Prospectus and any amendments
or supplements thereto, (vii) the fees charged by nationally recognized
statistical rating organizations for the rating of the Debt Securities, (viii)
the filing fees incident to, and the reasonable fees and disbursements of
counsel to the Underwriters in connection with, the review, if any, by the NASD
of the terms of the sale of the Debt Securities, and (ix) the reasonable fees
and expenses of any Underwriter acting in the capacity of a "qualified
independent underwriter" (as defined in Rule 2720(b)(15) of the Rules of the
NASD), if applicable.
(b) Termination of Agreement. If this Agreement is terminated by DLJ in
accordance with the provisions of Section 5 or Section 9(a)(i) hereof, the
Operating Partnership shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable and documented fees and
disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase and pay for the Debt Securities are subject to the
accuracy in all material respects of the representations and warranties of the
Company and the Operating Partnership contained in Section 1 hereof or in
certificates of any officer of the Company or the Operating Partnership or any
of their respective subsidiaries delivered pursuant to the provisions hereof, to
the performance by the Company or the Operating Partnership of its covenants and
other obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act and no
proceedings for that purpose shall have been instituted or be pending or
threatened by the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters. A Prospectus containing information
relating to the description of the Debt Securities, the specific method of
distribution and similar matters shall have been filed with the Commission in
accordance with Rule 424(b)(1), (2), (3), (4) or (5), as applicable (or any
required post-effective amendment).
(b) Opinion of Counsel for the Company and the Operating Partnership.
At Closing Time, DLJ shall have received the favorable opinion, dated as of
Closing Time, of Xxxxxxxx Chance Xxxxxx & Xxxxx LLP, counsel for the Company and
the Operating Partnership, in form and substance reasonably satisfactory to
counsel for the Underwriters, together with signed or reproduced copies of such
letter for each of the other Underwriters, to the effect set forth in Exhibit B
hereto and to such further effect as counsel to the Underwriters may reasonably
request.
(c) Opinion of Counsel for the Underwriters. At Closing Time, DLJ shall
have received the favorable opinion, dated as of Closing Time, of Milbank,
Xxxxx, Xxxxxx & XxXxxx LLP, counsel for the Underwriters, with respect to the
matters set forth in (v) through (x), (xiii) and (xiv), inclusive, of Exhibit B.
(d) Additional Opinion. In giving their opinions required by
subsections (b) and (c), respectively, of this Section, Xxxxxxxx Chance Xxxxxx &
Xxxxx LLP and Milbank, Tweed, Xxxxxx & XxXxxx LLP shall each additionally state
that nothing has come to their attention that would lead them to believe that
the Registration Statement or any amendment thereto (except for financial
statements, supporting schedules and other financial data, as to which counsel
need make no statement), at the time it became effective (or, if an amendment to
the Registration Statement or an Annual Report on Form 10-K has been filed by
the Company or the Operating Partnership with the Commission, subsequent to the
effectiveness of the Registration Statement, then at the time such amendment
becomes effective or at the time of the most recent filing of such Annual
Report, as the case may be), contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading or that the Prospectus or
any amendment or supplement thereto (except for financial statements, supporting
schedules and other financial data, as to which such counsel need make no
statement), at Closing Time, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading. In giving their opinions required by subsections (b)
and (c), respectively, of this Section, Xxxxxxxx Chance Xxxxxx & Xxxxx LLP and
Milbank, Tweed, Xxxxxx & XxXxxx LLP may rely, (1) as to all matters of fact,
upon certificates and written statements of officers and employees of and
accountants for the Company and the Operating Partnership and (2) with respect
to certain other matters, upon certificates of appropriate government officials
in such jurisdiction.
(e) Officers' Certificate. At Closing Time, there shall not have been
since the respective dates as of which information is given in the Prospectus,
any material adverse change in the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise or the Operating Partnership and its
subsidiaries considered as one enterprise, or the Properties, collectively,
whether or not arising in the ordinary course of business, from that set forth
in the Prospectus; no proceedings shall be pending or, to the knowledge of the
Company or the Operating Partnership, threatened against the Company or the
Operating Partnership 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 the Company and its subsidiaries
considered as one enterprise or of the Operating Partnership and its
subsidiaries considered as one enterprise or the Properties, collectively, other
than as set forth in the Prospectus or incorporated therein by reference; and
DLJ shall have received a certificate of the President or the Chief Executive
Officer and of the Chief Financial Officer of the Company in such capacity, and
of the general partner of the Operating Partnership, dated as of such Closing
Time, to the effect that (i) there has been no such material adverse change and
(ii) the representations and warranties in Section 1 are true and correct in all
material respects with the same force and effect as though made at the Closing
Time. As used in this Section 5(e), the term "Prospectus" means the Prospectus
in the form first used to confirm sales of the Debt Securities.
(f) Accountant's Comfort Letter. At Closing Time, DLJ shall have
received from PricewaterhouseCoopers LLP a letter dated such date, in form and
substance reasonably satisfactory to DLJ, together with signed or reproduced
copies of such letter for each of the other Underwriters, containing statements
and information as set forth in Exhibit C.
(g) Ratings. There shall not have occurred, and no "nationally
recognized statistical rating organization" as such term is defined for purposes
of Rule 436(g)(2) under the 1933 Act shall have publicly announced that it is
considering (i) the downgrading, suspension or withdrawal of, or any review for
a possible change that does not indicate the direction of the possible change
in, any rating assigned to the Operating Partnership or any securities of the
Operating Partnership or (ii) any change in the outlook for any rating of the
Operating Partnership or any securities of the Operating Partnership.
(h) Termination. If any condition specified in this Section 5 shall not
have been fulfilled when and as required to be fulfilled, this Agreement may be
terminated by DLJ by notice to the Operating Partnership at any time at or prior
to the Closing Time and such termination shall be without liability of any party
to any other party except as provided in Section 4 and except that Sections 1,
6, 7 and 8 shall survive any such termination and remain in full force and
effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company and the Operating
Partnership, jointly and severally, hereby agree to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as
follows:
(1) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto) or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(2) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that any such settlement is effected with the written consent of the
indemnifying party; and
(3) against any and all expense whatsoever, as incurred
(including the documented fees and disbursements of counsel chosen by
DLJ), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (1) or (2) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company or the
Operating Partnership by any Underwriter through DLJ expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto).
(b) Indemnification of Company, Operating Partnership, Directors and
Officers. Each Underwriter severally agrees to indemnify and hold harmless the
Company, the Operating Partnership, the directors, each of the officers who
signed the Registration Statement, and each person, if any, who controls the
Company or the Operating Partnership within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company and the Operating
Partnership by such Underwriter through DLJ expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by DLJ, and, in the case of
parties indemnified pursuant to Section 6(b) above, counsel to the indemnified
parties shall be selected by the Company or the Operating Partnership. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company or the
Operating Partnership, on the one hand, and the Underwriters, on the other hand,
from the offering of the Debt Securities or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company or the Operating Partnership,
on the one hand, and the Underwriters, on the other hand, in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company or the Operating
Partnership, on the one hand, and the Underwriters, on the other hand, in
connection with the offering of the Debt Securities shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of such
Debt Securities (before deducting expenses) received by the Company or the
Operating Partnership and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus.
The relative fault of the Company or the Operating Partnership, on the
one hand, and the Underwriters, on the other hand, shall be determined by
reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or the Operating Partnership
or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Operating Partnership and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 7
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
7. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Debt Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company or the
Operating Partnership within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the
Company or the Operating Partnership. The Underwriters' respective obligations
to contribute pursuant to this Section 7 are several in proportion to the
aggregate principal amount of Debt Securities set forth opposite their
respective names in Schedule I attached hereto, and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of the Operating Partnership or any of its
subsidiaries submitted pursuant hereto or thereto shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter or controlling person, or by or on behalf of the Operating
Partnership, and shall survive delivery of and payment for the Debt Securities.
SECTION 9. Termination.
(a) Underwriting Agreement. DLJ may terminate this Agreement, by notice
to the Operating Partnership, at any time at or prior to the Closing Time, if
(i) there has been, since the time of execution of this 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 Company and its
subsidiaries considered as one enterprise or the Operating Partnership and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) there has occurred any material adverse
change in the financial markets in the United States or any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of DLJ, impracticable to market the Debt
Securities or to enforce contracts for the sale of the Debt Securities, or (iii)
trading in any 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 have been required, by either of said exchanges or by such
system or by order of the Commission, the NASD or any other governmental
authority, or (iv) a banking moratorium has been declared by either Federal or
New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section 9, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at the Closing Time or the relevant Date of
Delivery, as the case may be, to purchase the Debt Securities which it or they
are obligated to purchase (the "Defaulted Securities"), then DLJ shall have the
right, within 48 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, DLJ shall not have completed
such arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted Securities does not
exceed 10% of the aggregate principal amount of Debt Securities to be purchased
on such date, the non-defaulting Underwriters shall be obligated, severally and
not jointly, to purchase the full amount thereof in the proportions that their
respective underwriting obligations as listed on Schedule 1 hereto bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities exceeds
10% of the aggregate principal amount of Debt Securities to be purchased on such
date shall terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either DLJ, the Company 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 to DLJ at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, attention of Xxxxxxx Xxxxxxx, Managing Director and notices to the
Operating Partnership shall be directed to it at CP Limited Partnership, 0000
Xxxxx Xxxxxxxx Xxx, Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000, attention of Xxxx X.
XxXxxxxx, Chief Executive Officer.
SECTION 12. Parties. This Agreement shall inure to the benefit of and
be binding upon the Company, the Operating Partnership, DLJ and any other
Underwriters and their respective successors. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriters, the Company and the Operating
Partnership and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the parties hereto 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 Debt 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 SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings
herein are for convenience only and shall not affect the construction hereof.
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 Agreement, along with all counterparts, will become a
binding agreement between DLJ and the Operating Partnership in accordance with
its terms.
Very truly yours,
CHATEAU COMMUNITIES, INC.
By: ___________________________
Name:
Title:
CP LIMITED PARTNERSHIP
By: Chateau Communities, Inc.
(one of its general partners)
By:__________________________
Name:
Title:
By: ROC Communities, Inc.
(its other general partner)
By:__________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By:______________________________
Authorized Signatory
SCHEDULE I
Principal amount of
Debt Securities
Underwriter to be Purchased
----------- ----------------
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION ..............................................$75,000,000
XXXXXX BROTHERS, INC ................................................$25,000,000
-----------
Total......................................................$100,000,000
============
EXHIBIT A
Title of Debt Securities:
____% Senior Notes due _____
Aggregate principal amount:
$100,000,000
Price to Public:
____% of the principal amount of the Debt Securities, plus accrued
interest, if any, from ___________, 2000
Purchase Price by Underwriters:
____% of the principal amount of the Debt Securities, plus accrued
interest, if any, from ___________, 2000
Specified funds for payment of purchase price:
Federal (same day) funds
Indenture:
Indenture, dated as of December 19, 1997, between the Operating
Partnership and Bank One Trust Company, NA (formerly, The First
National Bank of Chicago), as Trustee, as supplemented by the Second
Supplemental Indenture, dated as of ___________, 2000
Maturity:
Interest Rate:
____% per annum
Interest Payment Dates:
Redemption Provisions:
Sinking Fund Provisions:
Time of Delivery:
10:00 A.M., ___________, 2000
Closing Location:
Xxxxxxxx Chance Xxxxxx & Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
EXHIBIT B
FORM OF OPINION OF COUNSEL FOR THE COMPANY AND THE OPERATING
PARTNERSHIP TO BE DELIVERED PURSUANT TO SECTION 5(b)
(i) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Maryland.
(ii) The Operating Partnership has been duly formed and is validly
existing as a limited partnership in good standing under the laws of the State
of Maryland. The issued and outstanding units of the Operating Partnership have
been duly authorized and validly issued and are entitled to the benefits of the
Partnership Agreement.
(iii) Each of the Company and the Operating Partnership has full
corporate or partnership power and authority, as the case may be, to own, lease
and operate its properties and to conduct its respective business as described
in the Prospectus.
(iv) The Company is duly qualified or registered as a foreign
corporation to transact business and is in good standing in the States of
Michigan, Florida, Indiana and Colorado. The Operating Partnership is duly
qualified or registered as a foreign partnership in the States of Florida,
Colorado, Georgia, Indiana, Michigan and Minnesota.
(v) This Agreement has been duly authorized, executed and delivered by
the Company and the Operating Partnership.
(vi) The Debt Securities have been duly authorized by the Operating
Partnership for issuance and sale pursuant to this Agreement. The Debt
Securities, when issued and authenticated in the manner provided for in the
Indenture and delivered against payment of the consideration therefor specified
in this Agreement, will constitute valid and legally binding obligations of the
Operating Partnership, enforceable against the Operating Partnership in
accordance with their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a proceeding in
equity or at law); and the Debt Securities are in the form contemplated by, and
each registered holder thereof is entitled to the benefits of, the Indenture.
(vii) The Indenture has been duly qualified under the 1939 Act; and the
Indenture and the Supplemental Indenture conform in all material respects to the
statements relating thereto contained in the Prospectus.
(viii) The Debt Securities, when issued and delivered in accordance
with the terms of the Indenture, the Supplemental Indenture and this Agreement,
will conform in all material respects to the statements relating thereto
contained in the Prospectus; and the form of certificate used to evidence the
Debt Securities is in due and proper form and complies in all material respects
with all applicable statutory requirements.
(ix) The Registration Statement has been declared effective under the
1933 Act and, to the best of our knowledge and information, no stop order
suspending the effectiveness of the Registration Statement has been issued under
the 1933 Act or proceedings therefor initiated or threatened by the Commission.
(x) At the time the Registration Statement became effective, the
Registration Statement, and at the date of this Agreement and the date hereof,
the Prospectus (excluding in each case the documents incorporated by reference
therein and the financial statements and related schedules and other financial
data, whether included in or incorporated by reference or omitted from the
Registration Statement or the Prospectus, and the Trustee's Statement of
Eligibility on form T-1, as to which we express no opinion) complied as to form
in all material respects with the requirements of the 1933 Act and the 1933 Act
Regulations.
(xi) Each document filed pursuant to the 1934 Act (other than the
financial statements, supporting schedules and other financial data included
therein or excluded therefrom, as to which no opinion need be rendered) and
incorporated or deemed to be incorporated by reference in the Prospectus
complied when so filed as to form in all material respects with the 1934 Act and
the 1934 Act Regulations.
(xii) To the best of our knowledge, no authorization, approval or
consent of any court or governmental authority or agency is required that has
not been obtained in connection with the consummation by the Company or the
Operating Partnership of the transactions contemplated by this Agreement, the
Indenture, the Supplemental Indenture and the consummation of the transactions
contemplated therein, except such as may be required under the 1933 Act or the
1933 Act Regulations, the 1934 Act or the 1934 Act Regulations, the 1939 Act or
the 1939 Act Regulations, state securities laws, real estate syndication laws or
under the rules and regulations of the NASD.
(xiii) The Company, the Operating Partnership and any of their
respective subsidiaries are not, and upon the issuance and sale of the Debt
Securities as herein contemplated and the application of the net proceeds
therefrom as described in the Prospectus will not be, an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
(xiv) The statements set forth in the Prospectus under the captions
"Description of Debt Securities" and in the Prospectus Supplement under the
caption "Description of the Notes" or any caption purporting to cover such
matters, and the information in the Registration Statement under Item 15
relating to indemnification of officers and directors, to the extent such
statements or information constitute matters of law, or legal conclusions, have
been reviewed by us and are correct in all material respects.
(xv) To the best of our knowledge, there are no legal or governmental
proceedings pending or threatened against the Company, the Operating Partnership
or any of their respective subsidiaries which are required to be disclosed in
the Prospectus, other than those disclosed therein; to the best of our
knowledge, all pending legal or governmental proceedings to which the Company,
the Operating Partnership or any of their respective subsidiaries is a party or
of which any of their properties or assets is the subject which are not
described in or incorporated by reference into the Prospectus, are, considered
in the aggregate, not material.
(xvi) To the best of our knowledge, there are no contracts, indentures,
mortgages, loan agreements, notes, leases or other instruments required to be
described or referred to in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement other than those described or
referred to therein or filed as exhibits thereto and the descriptions thereof or
references thereto, to the extent contained therein, are correct in all material
respects, and, to the best of our knowledge and information, no default exists
in the due performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument so described, referred to or filed.
(xvii) The execution and delivery of this Agreement, the Indenture and
the Supplemental Indenture and the consummation of the transactions contemplated
therein and compliance thereof by the Operating Partnership or any of its
subsidiaries (to the extent they are a party thereto) does not conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or asset of the
Operating Partnership pursuant to any contract, indenture, mortgage or loan
agreement known to us, to which the Operating Partnership is a party or is bound
or to which any of their properties or assets is subject, nor will such action
result in violation of the provisions of the charter, by-laws, agreement of
limited partnership or other organizational documents of the Operating
Partnership or any applicable law, administrative regulation or administrative
or court order or decree known to us.
EXHIBIT C
FORM OF ACCOUNTANT'S COMFORT LETTER PURSUANT TO SECTION 5(f)
1. We are independent certified public accountants with respect to the
Company and the Operating Partnership within the meaning of the Act and
the applicable rules and regulations thereunder adopted by the Securities
and Exchange Commission ("SEC").
2. In our opinion, the consolidated financial statements and financial
statement schedules audited by us and incorporated by reference in the
Registration Statement and Prospectus Supplement comply as to form in all
material respects with the applicable accounting requirements of the Act
and the Securities Exchange Act of 1934 and the related rules and
regulations adopted by the SEC.
3. We have not issued our report related to an audit of any financial
statements of the Company or Operating Partnership as of any date or for
any period subsequent to December 31, 1998; although we have conducted an
audit for the year ended December 31, 1998, the purpose (and therefore
the scope) of such audit was to enable us to express our opinion on the
consolidated financial statements as of December 31, 1998 and for the
year then ended, but not on the financial statements for any interim
period within such year. Therefore, we are unable to and do not express
an opinion on the financial position, results of operations or cash flows
included in the Company or Operating Partnership's quarterly reports on
Form 10-Q for the periods ended March 31, 1999, June 30, 1999 and
September 30, 1999, incorporated by reference in the Registration
Statement and Prospectus Supplement, or the financial position, results
of operations or cash flows as of any date or for any period subsequent
to December 31, 1998.
4. For purposes of this letter, we have read the minutes of the 1999 and
2000 meetings of the stockholders, the Board of Directors and Executive
Committee of the Company and the Operating Partnership as set forth in
the minute books at February 22, 2000, officials of the Company having
advised us that the minutes of all such meetings through that date were
set forth therein, and have carried out other procedures to February 22,
2000 (our work did not extend to the period from February 23, 2000 to
February 25, 2000, inclusive) as follows:
a. With respect to the three-, six- and nine-month periods ended
March 31, 1999, June 30, 1999 and September 30, 1999 respectively
we have:
(i) performed 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, on the unaudited condensed
consolidated financial statements for these periods,
described in 3, included in the Company and the Operating
Partnership's quarterly reports on Form 10-Q for the
quarters ended March 31, 1999, June 30, 1999 and September
30, 1999, incorporated by reference in the Registration
Statement and Prospectus Supplement; and
(ii) inquired of certain officials of the Company and the
Operating Partnership who have responsibility for financial
and accounting matters whether the unaudited condensed
consolidated financial statements referred to in a(i) above
comply as to form in all material respects with the
applicable accounting requirements of the Securities
Exchange Act of 1934 as it applies to Form 10-Q and the
related rules and regulations adopted by the SEC.
b. With respect to the period from October 1, 1999 to December 31,
1999, we have:
(i) read the unaudited consolidated financial data of the
Company and Operating Partnership for October, November and
December of both 1999 and 1998 furnished to us by the
Company, officials of the Company having advised us that no
such financial data as of any date or for any period
subsequent to December 31, 1999 were available; the
financial data for October, November and December of both
1999 and 1998 is incomplete in that it omits the statements
cash flows and other disclosures and
(ii) inquired of certain officials of the Company who have
responsibility for financial and accounting matters as to
whether the unaudited consolidated financial data referred
to in b(i) above are stated on a basis substantially
consistent with that of the audited consolidated financial
statements included in the Registration Statement.
The foregoing procedures do not constitute an audit made in accordance with
generally accepted auditing standards. Also, they would not necessarily reveal
matters of significance with respect to the comments in the following paragraph.
Accordingly, we make no representations as to the sufficiency of the foregoing
procedures for your purposes.
5. Nothing came to our attention as a result of the foregoing procedures,
however, that caused us to believe that:
a. (i) Any material modifications should be made to the unaudited
condensed consolidated financial statements described in 4a(i),
incorporated by reference in the Registration Statement and
Prospectus Supplement, for them to be in conformity with generally
accepted accounting principles.
(ii) The unaudited condensed consolidated financial statements
described in 4a(i) do not comply as to form in all material
respects with the applicable accounting requirements of the
Securities Exchange Act of 1934 as it applies to Form 10-Q
and the related rules and regulations adopted by the SEC.
b. (i) At December 31, 1999, there was any change in the capital
stock, increase in long-term debt, or decrease in stockholders'
equity of the Company and Operating Partnership as compared with
amounts shown in the September 30, 1999 condensed consolidated
balance sheet included in the Registration Statement, or (ii) for
the period from October 1, 1999 to December 31, 1999, there were
any decreases, as compared with the corresponding period in the
preceding year, in consolidated revenues, operating income, funds
from operations, or in the total or per-share amounts of income
before minority interests or of net income, except in all
instances for changes, increases or decreases which the
Registration Statement discloses have occurred or may occur.
6. Company officials have advised us that no consolidated financial data as
of any date or for any period subsequent to December 31, 1999 are
available; accordingly, the procedures carried out by us with respect to
changes in financial statement items after December 31, 1999 have, of
necessity, been even more limited than those with respect to the periods
referred to in 4. We have inquired of certain officials of the Company
who have responsibility for financial and accounting matters as to
whether (a) at February 22, 2000 there was any change in the capital
stock, increase in long-term debt, or decrease in stockholders' equity of
the Company or the Operating Partnership as compared with amounts shown
in the December 31, 1999 condensed consolidated financial results
incorporated by reference in the Registration Statement; or (b) for the
period from January 1, 2000 to February 22, 2000, there were any
decreases, as compared with the corresponding period in the preceding
year, in consolidated revenues, operating income, funds from operations
or in the total or per-share amounts of income before minority interests
or of net income. On the basis of these inquiries and our reading of the
minutes as described in 4, nothing came to our attention that caused us
to believe that there was any such change, increase or decrease, except
in all instances for changes, increases or decreases which the
Registration Statement or Prospectus Supplement discloses have occurred
or may occur.
7. For purposes of this letter, we have also read the items identified by
you on the attached copies of the 1998 Form 10-K, Quarterly Reports on
Form 10-Q for the periods ended March 31, 1999, June 30, 1999 and
September 30, 1999, Report on Form 8-K dated February 17, 2000, the
Registration Statement and the Prospectus Supplement, attachments number
1 through _____, and have performed the following procedures, which were
applied as indicated with respect to the letters explained below:
A. We compared the dollar amounts or percentages to the corresponding
dollar amounts or percentages in the Company's or the Operating
Partnership's audited consolidated financial statements and found
them to be in agreement, after giving effect to rounding. However,
we make no comment with respect to reasons for changes between
periods.
B. We compared the dollar amounts to the corresponding dollar amounts
in the Company's or the Operating Partnership's unaudited
consolidated financial statements and found them to be in
agreement, after giving effect to rounding. However, we make no
comment with respect to reasons given for changes between periods.
We performed a review of interim financial information for the
periods ended as described in 4; we have not performed a review of
interim financial information for any interim periods in 1998.
C. We recomputed the dollar amounts, percentages and ratios based
upon corresponding amounts in the Company's or the Operating
Partnership's audited consolidated financial statements and found
them to be in agreement, after giving effect to rounding. However,
we make no comment with respect to reasons given for changes
between periods.
D. We recomputed the dollar amounts, percentages and ratios based
upon the corresponding amounts in the Company's or the Operating
Partnership's unaudited consolidated financial statements and
found them to be in agreement, after giving effect to rounding.
However, we make no comment with respect to reasons given for
changes between periods. We performed a review of interim
financial information for the periods ended as described in 4,; we
have not performed a review of interim financial information for
any other interim periods in 1998.
E. We compared to or recomputed the dollar amounts, percentages and
ratios, using corresponding dollar amounts, percentages or ratios
contained in schedules prepared by the Company or the Operating
Partnership and found them to be in agreement, after giving effect
to rounding. However, we make no comment with respect to reasons
given for changes between periods.
F. We compared amounts to the Company's trial balance as of or for
the year ended December 31, 1999 prepared by the Company or the
Operating Partnership, which is the basis for the consolidated
financial statements and found them to be in agreement. We have
audited the consolidated financial statements of the Company and
the Operating Partnership as of and for the year ended December
31, 1999; however, the Company and the Operating Partnership have
not publicly issued such financial statements, and we have not
issued our report with respect thereto. The consolidated financial
statements, including footnotes, have not been finalized by the
Company or the Operating Partnership. Based upon the financial
statements provided to us, but not finalized, we expect to issue
an unqualified opinion on the Company and the Operating
Partnership's consolidated financial statements for the year ended
December 31, 1999, reflecting in all material respects the
financial information with respect to the year ended December 31,
1999 contained in the Form 8-K.
8. For purposes of this letter, we have also read the following information
and have performed the additional procedures stated below with respect to
such information.
"Ratio of Earnings to Fixed Charges," page 4
FILL IN THE BLANK________________________________________________
9. Our audit of the consolidated financial statements for the periods
referred to in the introductory paragraph of this letter comprised audit
tests and procedures deemed necessary for the purpose of expressing an
opinion on such financial statements taken as a whole. For none of the
periods referred to therein, or any other period, did we perform audit
tests for the purpose of expressing an opinion on individual balances of
accounts or summaries of selected transactions such as those marked on
the attached copies of pages of the Registration Statement or Prospectus
Supplement and , accordingly, we express no opinion thereon.
10. It should be understood that we make no representations regarding
questions of legal interpretation or regarding the sufficiency for your
purposes of the procedures enumerated in paragraph seven and eight; also,
such procedures would not necessarily reveal any material misstatement of
the amounts or percentages listed above. Further, we have addressed
ourselves solely to the foregoing data as set forth in the Registration
Statement and Prospectus Supplement and make no representations regarding
the adequacy of disclosure or regarding whether any material facts have
been omitted.
11. This letter is solely for the information of the addressees and to assist
the underwriters in conducting and documenting their investigation of the
affairs of the Company and the Operating Partnership in connection with
the offering of the securities covered by the Registration Statement and
Prospectus Supplement, and is not to be used, circulated, quoted, or
otherwise referred to within or without the underwriting group for any
other purpose, including but not limited to the registration, purchase,
or sale of securities, nor is it to be filed with or referred to in whole
or in part in the Registration Statement and Prospectus Supplement or any
other document, except that reference may be made to it in the
underwriting agreement or in any list of closing documents pertaining to
the offering of the securities covered by the Registration Statement and
Prospectus Supplement.
