UNDERWRITING AGREEMENT Parkway Properties, Inc. 2,400,000 shares of Series D Cumulative Redeemable Preferred Stock (par value $.001 per share)
Exhibit 1
Parkway Properties, Inc.
2,400,000 shares of Series D Cumulative Redeemable Preferred Stock
(par value $.001 per share)
May 28, 2003
Wachovia Securities, Inc.
X.X. Xxxxxxx & Sons, Inc.
c/o Wachovia Securities, Inc.
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
Parkway Properties, Inc., a Maryland corporation (the "Company") and Parkway Properties LP, a Delaware limited partnership (the "Partnership"), confirm their agreement with Wachovia Securities, Inc. and X.X. Xxxxxxx & Sons, Inc. (the "Underwriters"), as follows:
Description of Securities. The Company proposes to issue and sell to the Underwriters 2,400,000 shares of Series D Cumulative Redeemable Preferred Stock (the "Securities") of the Company, par value $0.001 per share (the "Series D Preferred Stock"). The terms of the Series D Preferred Stock will be set forth in the articles supplementary to the Company's charter creating the Series D Preferred Stock and designating the rights, preferences and restrictions thereof (the "Articles Supplementary").
Representations and Warranties of the Company and the Partnership. The Company and the Partnership jointly and severally represent and warrant to and agree with the Underwriters that:
A registration statement on Form S-3 (File No. 333-48161), including pre-effective amendment no. 1 thereto, with respect to the Securities, including a prospectus (as amended, the "Base Prospectus"), have been carefully prepared by the Company in conformity with the requirements of the Securities Act of 1933, as amended (the "Act") and the rules and regulations (the "1933 Act Rules and Regulations") of the Securities and Exchange Commission (the "Commission") thereunder, have been filed with the Commission and declared effective. No stop order suspending the effectiveness of the registration statement or the use of any prospectus relating to the offering of the Securities has been issued, and no proceeding for that purpose has been instituted or threatened by the Commission. One or more prospectus supplements (each, a "Prospectus Supplement") setting forth the terms of the offering, sale and plan of distribution of the Securities and additional information
concerning the
Company and its business has been or will be so prepared and will be filed
pursuant to Rule 424(b) of the 1933 Act Rules and Regulations. Copies of such registration statement, the
Base Prospectus, and any such amendments or supplements and all documents
incorporated by reference therein that were filed with the Commission on or
prior to the date of this Underwriting Agreement (including one fully executed
copy of the registration statement and of each amendment thereto) have been
delivered to the Underwriters and their counsel. The registration statement, as it may have heretofore been
amended, is referred to herein as the "Registration Statement," and the Base
Prospectus included in the Registration Statement, as supplemented by each
Prospectus Supplement, in the respective forms they are filed with the
Commission pursuant to Rule 424(b), is referred to herein as the
"Prospectus." Any reference herein to
the Registration Statement, the Prospectus or any amendment or supplement
thereto shall be deemed to refer to and include the documents incorporated by
reference therein, and any reference herein to the terms "amend," "amendment"
or "supplement" with respect to the Registration Statement or Prospectus shall
be deemed to refer to and include any document filed with the Commission deemed
to be incorporated by reference therein.
For purposes of this Underwriting Agreement, all references to the
Registration Statement, the Preliminary Prospectus and the Prospectus or to any
amendment or supplement thereto shall be deemed to include any copy filed with
the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval
System ("XXXXX"), and such copy shall be identical in content to any such
document delivered to the Underwriters for use in connection with the offering
of the Securities.
Each part of the Registration Statement, when such part became or becomes effective, and the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission and at the Closing Date (as hereinafter defined), conformed or will conform in all material respects with the requirements of the Act and the 1933 Act Rules and Regulations; each part of the Registration Statement, when such part became or becomes effective, or when such part was filed with the Commission, did not or 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; the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission and at the Closing Date, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; except that the foregoing shall not apply to statements in, or omissions from, any such document in reliance upon, and in conformity with, written information concerning the Underwriters that was furnished to the Company by Wachovia Securities, Inc. specifically for use in the preparation thereof, it being understood and agreed that the only such information is that described as such in Section 0 hereof.
The documents incorporated by reference in the Registration Statement, the Prospectus and any amendment or supplement thereto, when they became or become effective under the Act or were or are filed with the Commission under the Act or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as the case may be, conformed or will conform in all material respects with the requirements of the Act, the 1933 Act Rules and Regulations, the Exchange Act and/or the rules and regulations of the Commission thereunder (the "Exchange Act Rules and Regulations"), as applicable.
The
consolidated financial statements of the Company together with the related
schedules and notes thereto, set forth or included or incorporated by reference
in the Registration Statement and Prospectus fairly
present the financial condition of the Company and its consolidated
subsidiaries as of the dates indicated and the results of operations, changes
in financial position, stockholders' equity and cash flows for the periods
therein specified, in conformity with accounting principles generally accepted
in the United States consistently applied throughout the periods involved
(except as otherwise stated therein).
The summary and selected financial and statistical data included or
incorporated by reference in the Registration Statement and the Prospectus
present fairly the information shown therein and, to the extent based upon or
derived from the financial statements, have been compiled on a basis consistent
with the financial statements presented therein. In addition, the pro forma financial statements of the Company,
and the related notes thereto, included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the information shown
therein, have been prepared in accordance with the Commission's rules and
guidelines with respect to pro forma financial statements and have been
properly compiled on the basis described therein, and the assumptions used in
the preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances referred to
therein. Furthermore, all financial
statements required by Rules 3-05, 3-14 and Article 11 of Regulation S-X have
been included or incorporated by reference in the Registration Statement and
the Prospectus and any such financial
statements are in conformity with such rules.
No otherfinancial statements are required to be set forth or to be
incorporated by reference in the Registration Statement or the Prospectus under
the Act or the 1933 Act Rules and Regulations thereunder.
Ernst & Young LLP, whose reports are incorporated by reference in the Registration Statement, are and, during the periods covered by their reports, were independent public accountants as required by the Act and the 1933 Act Rules and Regulations and as required by the applicable rules and regulations of the New York Stock Exchange, Inc. ("NYSE").
The only subsidiaries (as defined in the 1933 Act Rules and Regulations) of the Company and the Partnership are the subsidiaries listed on Schedule A hereto (the "Subsidiaries"). Each of the Company, the Partnership and the Subsidiaries has been duly incorporated or formed, as the case may be, and is an existing corporation, general or limited partnership, or other legal entity, as the case may be, in good standing under the laws of its jurisdiction of incorporation or formation, as the case may be. Each of the Company, the Partnership and each of the Subsidiaries has full power and authority (corporate and other) to conduct its business as described in the Registration Statement and Prospectus, and is duly qualified or registered to do business in each jurisdiction in which it owns or leases real property or in which the conduct of its business requires such qualification or registration except where the failure to be so qualified or registered, considering all such cases in the aggregate, would not have a material adverse effect on the assets, properties, business, results of operations, prospects or condition (financial or otherwise) of the Company, the Partnership and the Subsidiaries, taken as a whole ("Material Adverse Effect"); and, other than the Subsidiaries, the Company owns no stock or other beneficial interest in any corporation, partnership, joint venture or other business entity.
All of the
issued and outstanding general partnership interests in the partnership and all
of the issued and outstanding capital stock or ownership interests of each
Subsidiary have been duly authorized and are validly issued, fully paid and nonassessable and are wholly-owned by the Company,
directly or through subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
All of the issued and outstanding limited partnership interests
in the
Partnership have been duly authorized and are validly issued,
fully paid
and nonassessable and are majority owned by the Company directly or indirectly
through its Subsidiaries.
All of the issued and outstanding shares of capital stock of the Company have been duly authorized and are validly issued, fully paid and nonassessable and conform to the description thereof in the Prospectus. The stockholders of the Company have no preemptive rights with respect to the Securities. The Company has the authorized capital stock set forth in the Prospectus Supplement under the caption "Description of Capital Stock." As of May 23, 2003, (A) 64,697,143 shares of common stock (the "Common Stock") were authorized for issuance, of which 10,276,685 shares were issued and outstanding, (B) 2,760,000 shares of 8.75% Series A Cumulative Redeemable Preferred Stock, par value $.001 per share (the "Series A Preferred Stock") were authorized for issuance, of which 2,650,000 shares were issued and outstanding, (C) 2,142,857 shares of Series B ConvertibleCumulative Preferred Stock, par value $.001 per share (the "Series B Preferred Stock") were authorized for issuance, all of which were issued and outstanding, (D) 400,000 shares of Series C Preferred Stock, par value $.001 per share (the "Series C Preferred Stock") were authorized for issuance, none of which were outstanding, and (E) 30,000,000 shares of Excess Stock were authorized for issuance, none of which were issued or outstanding. The Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, and Series D Preferred Stock are collectively referred to herein as the "Preferred Stock." All of the issued and outstanding shares of capital stock of the Company, all the issued and outstanding limited partnership interests in the Partnership, and all ownership interests in each Subsidiary have been offered, sold and issued by such entity in compliance with all applicable laws, including without limitation, federal and state securities laws; except as described in the Prospectus, there is no outstanding option, warrant or other right requiring the issuance of, and no commitment, plan or arrangement to issue, any shares of capital stock of the Company or equity interests in the Partnership or any Subsidiary or any security convertible into or exchangeable for such shares or interests.
The Securities will be as of the Closing Date duly authorized by the Company for issuance and sale pursuant to this Underwriting Agreement; and when issued and delivered by the Company pursuant to this Underwriting Agreement against payment of the consideration therefor specified herein, will be validly issued, fully paid and nonassessable. The Securities conform to the description thereof in the Prospectus and will not be subject to any preemptive rights of any securityholder of the Company. No holder of Series D Preferred Stock will be subject to personal liability by reason of being such a holder. The Articles Supplementary will be in full force and effect prior to the Closing Date and will comply with all applicable legal requirements.
Except as
contemplated in the Prospectus, subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, the
Company, the Partnership and the Subsidiaries have not incurred any liabilities or obligations, direct or contingent; or
entered into any transactions, not in the ordinary course of business, that are
material to the Company, the Partnership and the Subsidiaries on a consolidated
basis; and there has not been any material change in the capital stock or
structure, short-term debt or long-term debt of the Company, the Partnership
and the Subsidiaries; or any material adverse change, or any development that
is reasonably likely to involve a prospective material adverse change, in the
condition (financial or other), business, prospects, net worth or results of
operations of the Company, the Partnership and the Subsidiaries on a
consolidated basis; and, except for regular dividends on the Company's Common
Stock, in amounts per share that are consistent with past practice or the
charter documents of the Company and the minimum dividends required by the
Company's Charter, as amended, on the Company's Preferred Stock, there has been
no dividend or distribution of any kind declared, paid or made by the Company
on any class of its capital stock.
Except as set forth in the Prospectus, there is not pending or, to the knowledge of the Company, threatened any action, suit or proceeding to which the Company, the Partnership, any of the Subsidiaries or any of their respective officers or directors is a party, or of which any of their properties or other assets is the subject, before or by any court or governmental agency or body, that is reasonably likely to result in any Material Adverse Effect.
No labor dispute with the employees of the Company, the Partnership or any of the Subsidiaries exists or, to the knowledge of the Company, is imminent that might have a Material Adverse Effect.
During the period of at least the last 24 calendar months prior to the date of this Underwriting Agreement, the Company has timely filed with the Commission all documents and other materials required to be filed pursuant to Sections 13, 14 and 15(d) under the Exchange Act.
There are no contracts or documents of the Company that are required to be filed as exhibits to the Registration Statement or to any of the documents incorporated by reference therein by the Act or the Exchange Act or by the rules and regulations of the Commission thereunder that have not been so filed.
This Underwriting Agreement has been duly authorized, executed and delivered by the Company and the Partnership and constitutes the legal, valid and binding obligation of the Company and the Partnership enforceable against the Company and the Partnership in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors rights generally or by general principles of equity.
The execution and performance of this Underwriting Agreement and the consummation of the transactions contemplated herein will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, (i) any statute, agreement or instrument to which the Company, the Partnership or any of the Subsidiaries is a party or by which they are bound or to which any of the property or other assets of the Company, the Partnership or any of the Subsidiaries is subject, (ii) the articles of incorporation, by-laws, certificate of general or limited partnership, partnership agreement or other organizational document, as applicable, of the Company, the Partnership or any of the Subsidiaries, or (iii) any statute, order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company, the Partnership or any of the Subsidiaries or any of their properties or other assets; no consent, approval, authorization or order of, filing with, or notice to any court or governmental agency or body is required for the consummation of the transactions contemplated by this Underwriting Agreement in connection with the issuance or sale of the Securities by the Company, except such as may be required under the Act and applicable statesecurities or
blue sky laws, if any, or pursuant to the listing requirements of the New York Stock Exchange ("NYSE"); and the Company has full power and authority to authorize, issue and sell the Securities as contemplated by this Underwriting Agreement, free of any preemptive rights.
The Company, the Partnership and the Subsidiaries have complied in all respects with all laws, regulations and orders applicable to them or their respective businesses, except as would not have a Material Adverse Effect; the Company, the Partnership and the Subsidiaries are not in default under any indenture, mortgage, deed of trust, voting trust agreement, loan agreement, bond, debenture, note agreement or evidence of indebtedness, lease, contract or other agreement or instrument to which they are a party or by which they or any of their properties or other assets are bound, violation of which would individually or in the aggregate have a Material Adverse Effect, and no other party under any such agreement or instrument to which the Company, the Partnership or any of the Subsidiaries are a party is, to the knowledge of the Company, in default in any material respect thereunder; and the Company, the Partnership and the Subsidiaries are not in violation of their respective articles of incorporation, by-laws, certificate of general or limited partnership, partnership agreement or other organizational documents, as the case may be.
The Agreement of Limited Partnership of the Partnership, including any amendments thereto (the "Partnership Agreement"), has been duly and validly authorized, executed and delivered by all partners of the Partnership and constitutes a valid and binding agreement, enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally or by general principles of equity.
Each of the Company, the Partnership and the Subsidiaries have good and marketable title to the properties and assets, as described in the Prospectus, owned by them, free and clear of all liens, charges, encumbrances or restrictions, except such as are described in the Prospectus or are not material in relation to the business of the Company, the Partnership and the Subsidiaries on a consolidated basis. The Company, the Partnership and the Subsidiaries have valid, subsisting and enforceable leases for the properties described in the Prospectus as leased by the Company, the Partnership and the Subsidiaries with such exceptions as are not material and do not interfere with the use made and proposed to be made of such properties by the Company, the Partnership and the Subsidiaries. No tenant under any of the leases pursuant to which the Company, the Partnership or any of the Subsidiaries lease their properties has an option or right of first refusal to purchase the premises demised under such lease. The use and occupancy of each of the properties of the Company, the Partnership and the Subsidiaries complies in all material respects with all applicable codes and zoning laws and regulations; the Company, the Partnership and the Subsidiaries have no knowledge of any pending or threatened condemnation or zoning change that will in any material respect affect the size of, use of, improvement of, construction on, or access to any of the properties of the Company, the Partnership and the Subsidiaries; and the Company, the Partnership and the Subsidiaries have no knowledge of any pending or threatened proceeding or action that will in any manner materially affect the size of, use of, improvements or construction on, or access to any of the properties of the Company, the Partnership or any of the Subsidiaries.
Except as described in the Prospectus, there are no contracts, agreements or understandings between the Company, the Partnership, any of the Subsidiaries and any person that would give rise to a valid claim against the Company, the Partnership, any of the Subsidiaries or the Underwriters for a brokerage commission, finder's fee or other like payment in connection with the offering, issuance and sale of the Securities.
Title insurance in favor of the Company, the Partnership and the Subsidiaries is maintained with respect to each of the properties owned by them in an amount at least equal to the cost of acquisition of such property, except, in each case, where the failure to maintain such title insurance is not reasonably likely to have a Material Adverse Effect.
The mortgages and deeds of trust encumbering the properties and assets described or referred to in the Prospectus are not convertible into the equity of the Company or any Subsidiary.
Except as otherwise described in the Prospectus, neither the Company, the Partnership nor any Subsidiary has authorized or conducted or has knowledge of the generation, transportation, storage, presence, use, treatment, disposal, release, or other handling of any hazardous substance, hazardous waste, hazardous material, hazardous constituent, toxic substance, pollutant, contaminant, asbestos, radon, polychlorinated biphenyls ("PCBs"), petroleum product or waste (including crude oil or any fraction hereof, natural gas, liquefied gas, synthetic gas or other material defined, regulated, controlled or potentially subject to any remediation requirement under any environmental law (collectively, "Hazardous Materials"), on, in, under or affecting any of the Company's properties, except in material compliance with applicable laws; except as disclosed in the Prospectus, the Company's properties are in material compliance with all federal, state and local laws, ordinances, rules, regulations and other governmental requirements relating to pollution, control of chemicals, management of waste, (collectively, "Environmental Laws"), and the Company, the Partnership and the Subsidiaries are in compliance with all licenses, permits, registrations and government authorizations necessary to operate under all applicable Environmental Laws in all material respects; except as otherwise described in the Prospectus, neither the Company, the Partnership or any Subsidiary has received any written or oral notice from any governmental entity or any other person and there is no pending, or, to the knowledge of the Company, threatened claim, litigation or any administrative agency proceeding that: alleges a violation of any Environmental Laws by the Company, the Partnership or any Subsidiary; or that the Company, the Partnership or any Subsidiary is a liable party or a potentially responsible party under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601, et. seq., or any state superfund law; has resulted in or could result in the attachment of an environmental lien on any of the properties; or alleges that the Company, the Partnership or any Subsidiary is liable for any contamination of the environment, contamination of the property, damage to natural resources, property damage, or personal injury based on their activities or the activities of their predecessors or third parties (whether at the properties or elsewhere) involving Hazardous Materials, whether arising under the Environmental Laws, common law principles, or other legal standards. In the ordinary course of its business, the Company, the Partnership and the Subsidiaries conduct Phase I environmental assessments on each of their properties at the time such property is acquired and periodic reviews of the effect of Environmental Laws on the business, operations and properties of the Company, the Partnership and the Subsidiaries. None of the entities which prepared appraisals of the properties or Phase I environmental assessment reports with respect to such properties was employed for such purpose on a contingent basis or has any substantial interest in the Company, the Partnership or any Subsidiary, and none of their directors, officers or
employees is connected with the Company, the
Partnership or any Subsidiary as a promoter, selling agent, director, officer or
employee.
Each of the Company, the Partnership and the Subsidiaries maintains insurance (issued by insurers of recognized financial responsibility) of the types and in the amounts generally deemed adequate, if any, for their respective businesses and consistent with insurance coverage maintained by similar companies in similar businesses, including, but not limited to, insurance covering real and personal property owned or leased by the Company, the Partnership and the Subsidiaries against theft, damage, destruction, acts of vandalism and all other risks customarily insured against, all of which insurance is in full force and effect.
No holder of outstanding shares of capital stock of the Company has any rights to sell shares of capital stock of the Company owned by such holder in the offering of the Securities contemplated by this Underwriting Agreement.
Since the date of the last audited financial statements included or incorporated by reference in the Registration Statement and the Prospectus, except as described therein, (i) there has not been any change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company, the Partnership or any of the Subsidiaries, whether or not arising from transactions in the ordinary course of business reasonably likely to result in a Material Adverse Effect, nor any event or development involving a prospective Material Adverse Effect; (ii) neither the Company, the Partnership nor any of the Subsidiaries has sustained any material loss or interference with its assets, businesses or properties (whether owned or leased) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree; and (iii) neither the Company, the Partnership nor any of the Subsidiaries has undertaken any liability or obligation, direct or contingent, except such liabilities or obligations undertaken in the ordinary course of business.
Each of the Company, the Partnership and the Subsidiaries have filed all federal, state, local and foreign income tax returns which have been required to be filed and has paid all taxes indicated by said returns and all assessments received by them to the extent that such taxes have become due. No tax deficiency has been asserted against the Company, the Partnership or any Subsidiary, nor, does the Company or the Partnership know of any tax deficiency which is likely to be asserted against the Company or the Partnership; all tax liabilities, if any, are adequately provided for on the respective books of the entities in all material respects.
The Company, the Partnership and the Subsidiaries hold all material licenses, certificates and permits from governmental authorities which are necessary to the conduct of their businesses and are in compliance with the terms and conditions of such licenses, certificates and permits; and the Company, the Partnership and the Subsidiaries have not received any notice of proceedings relating to the revocation or modification of any such permits, licenses or certificates that, if determined adversely to the Company, the Partnership or any Subsidiary, would have a Material Adverse Effect.
The Company, the Partnership and the Subsidiaries are conducting their
respective businesses in compliance with all applicable laws, rules and
regulations of the jurisdictions in which they are conducting business,
including, without limitation, the Americans with Disabilities Act of 1990 and
all applicable local, state and federal employment, truth-in-advertising,
franchising and immigration laws and regulations, except where the failure to be
so in compliance would not have a Material Adverse Effect.
No transaction has occurred between or among the Company, the Partnership or any Subsidiaries, on one hand, and any of their officers or directors or any affiliate or affiliates of any such officer or director, on the other hand, that is required to be described in and is not described or incorporated by reference in the Registration Statement and the Prospectus.
Except as otherwise described in the Prospectus, there are no material outstanding loans or advances or material guarantees of indebtedness by the Company, the Partnership or any of the Subsidiaries to or for the benefit of any of the officers or directors of the Company or any of their family members.
For its taxable years ended December 31, 1997 throught December 31, 2002, the Company has been organized and operating in conformity with the requirements for qualification as a "real estate investment trust" under the Internal Revenue Code of 1986, as amended (the "Code"). The Company's current and proposed method of operation will permit it to meet and to continue to meet the requirements for taxation as a real estate investment trust under the Code. The Company has no intention of changing its operations or engaging in activities which would cause it to fail to qualify, or make economically undesirable its continued qualification as, a real estate investment trust.
Neither the Company, the Partnership or any Subsidiary is and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
The Securities have been approved for listing on the NYSE, subject to official notice of issuance.
The Articles Supplementary have been duly and validly authorized and approved by all necessary corporate action on behalf of the Company. Each consent, approval, authorization, order, license, certificate, permit, registration, designation or filing by or with any governmental agency or body necessary for the valid authorization, issuance, sale and delivery of the Series D Preferred Stock and the execution, delivery and performance of this Underwriting Agreement and the consummation of the transactions contemplated hereby has been made or obtained or will be made or obtained and is or will be in full force and effect as of the Closing Date.
The system of internal accounting controls of the Company, the Partnership and the Subsidiaries, taken as a whole, is sufficient to meet the broad objectives of internal accounting controls insofar as those that would be material in relation to the Company's financial statements; and, to the Company's knowledge, neither the Company, the Partnership nor any Subsidiary, nor any employee or agent thereof, has made any payment of
funds of the Company, the Partnership or any of
the Subsidiaries, as the case may be, or received or
retained any funds, and no funds of the Company, the Partnership or any of the
Subsidiaries, as the case may be, have been set aside to be used for any
payment, in each case in violation of any law, rule or regulation.
Purchase, Sale and Delivery of Securities.
On the basis of the representations, warranties and agreements contained herein, but subject to the terms and conditions set forth herein, the Company agrees to issue and sell the Securities to the Underwriter, and the Underwriters severally, and not jointly, agree to purchase from the Company, the number of Securities set forth opposite their names Schedule B hereto, at a purchase price of $24.2125 per share (the "Purchase Price") reflecting an underwriting discount equal to 3.15%. It is understood and agreed that the Underwriters propose to offer the Securities for sale to the public as set forth in the Prospectus.
The Company will deliver the Securities to the Underwriters through the facilities of The Depository Trust Company against payment of the purchase price in Federal (same day) funds by wire transfer to the account of the Company, at 10:00 a.m., New York time, on June 27, 2003 (the "Closing Date"), time being of the essence.
Covenants. The Company and the Partnership jointly and severally covenant and agree with the Underwriters that:
The Company will file with the Maryland State Department of Assessments and Taxation and cause to become effective prior to the Closing Date the Articles Supplementary establishing and fixing the rights and preferences of the Series D Preferred Stock in such form as has been approved by the Underwriters and their counsel.
The Company will cause the final Prospectus Supplement to be filed with the Commission on or before the second business day after the date of this Agreement, or such earlier time as may be required pursuant to the 1933 Act Rules and Regulations (but only if the Underwriters or their counsel have not reasonably objected thereto by notice to the Company after having been furnished a copy a reasonable time prior to filing) and will notify the Underwriters promptly of such filing. During the period in which a prospectus relating to the Securities is required to be delivered under the Act or such date which is 90 days after the Closing Date, whichever is later, the Company will notify the Underwriters promptly of the time when any subsequent amendment to the Registration Statement has become effective or any subsequent supplement to the Prospectus has been filed, of any request by the Commission for any amendment or supplement to the Registration Statement or Prospectus or for additional information; the Company will prepare and file with the Commission, promptly upon the Underwriters' request, any amendments or supplements to the Registration Statement or Prospectus that, in the Underwriters' opinion, may be necessary or advisable in connection with the Underwriters' distribution of the Securities; and the Company will file no amendment or supplement to the Registration Statement or Prospectus (other than any prospectus supplement relating to the offering of other securities registered under the Registration Statement or any document required to be filed under the Exchange Act that upon filing is deemed to be incorporated by reference therein) to which the Underwriters or their counsel shall reasonably object by notice to the Company after having been furnished a copy a reasonable time prior to the filing.
The Company will advise the Underwriters, promptly after it shall receive notice or obtain knowledge thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, of the suspension of the qualification or registration of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding for any such purpose; and it will promptly use its best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such a stop order should be issued.
The Company will comply with all requirements imposed upon it by the Act, the 1933 Act Rules and Regulations, the Exchange Act and the Exchange Act Rules and Regulations as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Securities as contemplated by the provisions hereof and the Prospectus. If during such period where a prospectus relating to the Securities is required to be delivered under the Act or such date which is 90 days after the Closing Date, whichever is later, any event occurs as a result of which, in the opinion of Underwriter's counsel, the Registration Statement contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or if during such period it is necessary to amend or supplement the Registration Statement or Prospectus to comply with the Act, the Company will promptly notify the Underwriters and will amend or supplement the Registration Statement or Prospectus (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
Upon request, the Company will furnish to the Underwriters copies of the Registration Statement, the Prospectus (including all documents incorporated by reference therein) and all amendments and supplements to the Registration Statement and Prospectus that are filed with the Commission during the period in which a prospectus relating to the Securities is required to be delivered under the Act or such date which is 90 days after the Closing Date, whichever is later (including all documents filed with the Commission during such period that are deemed to be incorporated by reference therein), in each case as soon as available and in such quantities as the Underwriters may from time to time reasonably request.
During the period of two years commencing on the date upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the Act, the Company will furnish the Underwriters with copies of filings of the Company under the Act and Exchange Act and with all other financial statements and periodic and special reports it distributes generally to the holders of any class of its capital stock.
The Company will make generally available to its security holders as soon as practicable, and in the manner contemplated by Rule 158 of the 1933 Act Rules and Regulations but in any event not later than 15 months after the end of the Company's current fiscal quarter, an earnings statement (which need not be audited) covering a
12-month period beginning after the date upon which the
Prospectus Supplement is filed pursuant
to Rule 424(b) under the Act that shall satisfy the provisions of Section 11(a)
of the Act and Rule 158 of the 1933 Act Rules and Regulations and will advise
the Underwriters in writing when such statement has been made available.
Whether or not the transactions contemplated by this Underwriting Agreement are consummated or this Underwriting Agreement is terminated, the Company will pay, or reimburse if paid by the Underwriters, all costs and expenses incident to the performance of the obligations of the Company under this Underwriting Agreement, including but not limited to costs and expenses of or relating to (i) the preparation, printing and filing of the Registration Statement and exhibits thereto, each preliminary prospectus, the Prospectus and any amendment or supplement to the Registration Statement or the Prospectus, (ii) the preparation and delivery of certificates representing the Securities, (iii) the word processing, printing and reproduction of this Underwriting Agreement, (iv) the costs incurred by the Company in furnishing (including costs of shipping, mailing and courier) such copies of the Registration Statement, the Prospectus and any preliminary prospectus, and all amendments and supplements thereto, as may be requested for use in connection with the offering and sale of the Securities by the Underwriters or by dealers to whom Securities may be sold, (v) the listing of the Securities on the NYSE, (vi) any filings required to be made by the Underwriters with the NASD, and the fees, disbursements and other charges of Underwriter's counsel in connection therewith, (vii) the registration or qualification of the Securities for offer and sale under the securities or blue sky laws of such jurisdictions designated by the Underwriter, including the fees, disbursements and other charges of Underwriter's counsel in connection therewith, and the preparation and printing of a blue sky memoranda, (viii) counsel to the Company, (ix) the transfer agent for the Securities and (x) the Accountants.
If this Underwriting Agreement shall be terminated pursuant to any of the provisions hereof or if for any reason the Company shall be unable to perform their obligations hereunder, the Company will reimburse the Underwriters for all out-of-pocket expenses (including the fees, disbursements and other charges of Underwriters' counsel) reasonably incurred by the Underwriters in connection herewith.
The Company will not at any time, directly or indirectly, take any action designed to, or which might reasonably be expected, to cause or result in, or which has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price of the Series D Preferred Stock to facilitate the sale or resale of any of the Securities.
The Company will apply the net proceeds from the sale of the Securities as a portion of the funds required to redeem in full the Company's 8.75% Series A Cumulative Redeemable Preferred Stock, as set forth under the caption "Use of Proceeds" in the Prospectus Supplement.
The Company will continue to qualify as (and elect to qualify as) a "real estate investment trust" under the Code, and will use its best efforts to continue to meet the requirements to qualify as a "real estate investment trust."
On or before completion of this offering, the Company shall make all filings required under applicable securities laws and by the NYSE.
Conditions of Underwriters' Obligations. The Underwriters' obligations to purchase and pay for the Securities as provided herein shall be subject to the accuracy, as of the date hereof and as of the Closing Date (as if made at the Closing Date), of the representations and warranties of the Company and the Partnership herein, to the performance by the Company and the Partnership of their obligations hereunder and to the following additional conditions:
The Registration Statement shall have been declared effective under the Act; the Prospectus Supplement shall have been filed as required by Section 0 hereof; and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been instituted or, to the Underwriters' knowledge or the knowledge of the Company, threatened by the Commission, nor has any state securities authority suspended the qualification or registration of the Securities for offering or sale in any jurisdiction and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with the satisfaction of the Wachovia Securities, Inc. and Underwriters' counsel.
Wachovia Securities, Inc. shall not have advised the Company that the Registration Statement or any amendment thereto contains an untrue statement of fact that in the opinion of Wachovia Securities, Inc. or Underwriters' counsel is material or omits to state a fact that in the opinion of Wachovia Securities, Inc. or Underwriters' counsel is material, and is required to be stated therein or is necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact that in the opinion of Wachovia Securities, Inc. or Underwriters' counsel is material or omits to state a fact that in the opinion of Wachovia Securities, Inc. or Underwriters' counsel is material, and is necessary in light of the circumstance under which they were made, to make the statements therein not misleading.
Except as contemplated in the Prospectus Supplement, subsequent to the respective dates as of which information is included or incorporated by reference in the Registration Statement and the Prospectus, there shall not have been any change, on a consolidated basis, in the equity capitalization or long-term debt, or material
change in short-term debt, of the Company or the Partnership, or any business, prospects, net worth or results of operations of the Company, the Partnership or the Subsidiaries or any adverse change in the rating assigned to any securities of the Company, that, in the judgment of Wachovia Securities, Inc., makes it impractical or inadvisable to offer or deliver the Securities on the terms and in the manner contemplated in the Prospectus.
The Articles Supplementary shall have been filed with the Maryland State Department of Assessment and Taxation and become effective.
The Underwriters shall have received the opinions of Xxxxxxx Xxxxxxxxxxx & Mugel, LLP, counsel for the Company, and Xxxxx Xxxxxxx LLP, special Maryland counsel to the Company (upon which, Xxxxxxx Xxxxxxxxxxx & Mugel, LLP and Hunton & Xxxxxxxx LLP may rely), each dated the Closing Date, in form and substance satisfactory to Underwriter's counsel to the effect that:
Each of the Company, the Partnership and the Subsidiaries has been duly incorporated or formed, as the case may be, and is validly existing as a corporation, general or limited partnership, or other legal entity, as the case may be, in good standing under the laws of its jurisdiction of incorporation or formation, as the case may be, and has full power (corporate or other) and authority to conduct its business as described in the Registration Statement and Prospectus and to enter into and perform this Underwriting Agreement, and is duly qualified or registered to do business in each jurisdiction in which it owns or leases real property or in which the conduct of its business requires such qualification or registration, except where the failure to be so qualified or registered, considering all such cases in the aggregate, does not involve a material risk to the business, properties, financial position or results of operations of the Company, the Partnership and the Subsidiaries taken as a whole; and at the Closing Date, the Company's wholly-owned subsidiary, Parkway Properties General Partners, Inc., will be the sole general partner of the Partnership and will own an approximately 1% general partnership interest and the Company will own an approximately 99% limited partnership interest in the Partnership;
The Company's authorized equity
capitalization is as set forth in the Prospectus; the capital stock of the
Company conforms in all material respects to the description thereof contained
in the Prospectus and meets the requirements of Item 9 of Form S-3 under the
Act; the Company has authorized and issued capital stock as set forth in
Section 2(h) hereof; all of the issued and outstanding shares of capital stock
of the Company and Partnership
interests of the Partnership have been
duly and validly authorized and issued; and all of the issued and outstanding
shares of capital stock of the Company and Partnership interests of the
Partnership are fully paid and nonassessable and none of them was issued in
violation of any preemptive or other similar right. The Securities have been duly authorized by the Company for
issuance and sale and when issued and sold pursuant to this Underwriting
Agreement will be duly and validly issued, fully paid and nonassessable and none
of them will have been issued in violation of any preemptive or other similar
right. Except as disclosed in the Registration Statement and the
Prospectus, there is no outstanding option, warrant or other right calling for
the issuance of, and, to the knowledge of such counsel, no commitment, plan or
arrangement to issue, any share of capital stock of the Company or any security
convertible into, exercisable for, or exchangeable for capital stock of the
Company. No holder of outstanding shares of capital stock of the
Company has any rights to sell shares of capital stock of the Company owned by
such holder in the offering of shares contemplated by this Underwriting
Agreement. The issued and outstanding capital stock of the Company and the Securities conform, or
will conform, in all material respects to the descriptions thereof contained in
the Registration Statement and the Prospectus.
The form of certificate used to evidence the Securities is in due and
proper form and complies with all applicable statutory requirements, with any
applicable requirements of the Company's Charter and Bylaws and with the
requirements of the NYSE;
The Registration Statement has become effective under the Act, the Prospectus Supplement has been filed as required by Section 0 hereof and, to the best knowledge of such counsel, after due inquiry, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been instituted or threatened by the Commission;
Each part of the Registration Statement, when such part became effective, and the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission and at the Closing Date, complied as to form in all material respects with the requirements of the Act and the 1933 Act Rules and Regulations, and such counsel has no reason to believe that either (i) any part of the Registration Statement, when such part became effective or was filed under the Act or Exchange Act, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the Commission or at the Closing Date, included an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and the documents incorporated by reference in the Registration Statement or Prospectus or any amendment or supplement thereto, when they became effective under the Act or were filed with the Commission under the Act or Exchange Act, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; it being understood that such counsel need express no opinion as to the financial statements or other financial data included in any other documents mentioned in this clause;
The descriptions in the Registration Statement and Prospectus of statutes, legal and governmental proceedings, contracts and other documents are accurate and fairly present the information required to be shown; and such counsel does not know of any statutes or legal or governmental proceedings required to be described in the Prospectus that are not described as required, or of any contracts or documents of a character required to be described in the Registration Statement or Prospectus (or required to be filed under the Exchange Act if upon such filing they would be incorporated by reference therein) or to be filed as exhibits to the Registration Statement that are not described and filed as required;
The Articles Supplementary has been
duly and validly authorized and approved by all necessary corporate action on
behalf of the Company, have been duly and properly filed with the Maryland
State Department of Assessments and Taxation and are in full force and effect
and comply with all applicable legal requirements. Each consent, approval, authorization, order, license,
certificate, permit, registration, designation or filing by or with any
governmental agency or body required for the execution, delivery and
performance by the Company and the Partnership of their
respective obligations
under this Underwriting Agreement, and the consummation of the transactions
contemplated hereby including the valid authorization, issuance, sale and
delivery of the Series D Preferred Stock, except as may be required by the
securities or blue sky laws of the various states or by the NYSE and NASD in
connection with the purchase and distribution of the Series D Preferred Stock
by the Underwriters, as to which such counsel need express no opinion, has been
made or obtained or will be made or obtained.
This Underwriting Agreement has been duly authorized, executed and delivered by the Company and the Partnership; the execution, delivery and performance of this Underwriting Agreement and the consummation of the transactions contemplated herein will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, (a) any statute, indenture, mortgage, deed of trust, voting trust agreement, loan agreement, bond, debenture, note agreement or evidence of indebtedness, lease, contract or other agreement or instrument known to such counsel to which the Company, the Partnership or any of the Subsidiaries are a party or by which they are bound or to which any of the property or other assets of the Company, the Partnership or any of the Subsidiaries is subject, (b) the articles of incorporation, by-laws, certificate of general or limited partnership, partnership agreement, or other organizational document of the Company, the Partnership or any of the Subsidiaries, as applicable, or (c) any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, the Partnership or any of the Subsidiaries or any of their properties or other assets; and no consent, approval, authorization, notice to, order of, or filing with, any court or governmental agency or body is required for the consummation of the transactions contemplated by this Underwriting Agreement in connection with the issuance or sale of the Securities by the Company, except such as have been obtained under the Act or from the NYSE and the NASD;
For its taxable years ended December 31, 1997 through December 31, 2002, the Company has continuously been organized and operated in conformity with the requirements for qualification as a "real estate investment trust" under the Code. The Company's current and proposed method of operation will permit it to continue to meet the requirements for taxation as a "real estate investment trust" under the Code for its 2003 taxable years and thereafter. The federal income tax treatment described in the Prospectus Supplement under the caption "Material United States Federal Income Tax Consequences" is correct in all material respects and fairly summarizes the federal income tax laws referred to therein;
To such counsel's knowledge, neither the Company, the Partnership nor any of the Subsidiaries is in violation of any term or provision of their respective articles of incorporation, by-laws, certificate of general or limited partnership, partnership agreement or other organizational document, as applicable, or in violation of or default under any indenture, mortgage, deed of trust, voting trust agreement, loan agreement, bond, debenture, note agreement or evidence of indebtedness, lease, contract, permit, judgment, decree, order, statute, rule or regulation;
To such counsel's knowledge, there
is no litigation or governmental or other proceeding or investigation, before
any court or before or by any public body or board pending or threatened against, or involving the assets,
properties or businesses of, the Company, the Partnership or any of the
Subsidiaries, involving the Company's, the Partnership's or any of the
Subsidiaries' officers or
directors or to which any of the Company's, the
Partnership's or any of the Subsidiaries' properties or other assets is subject
which would have a Material Adverse Effect;
Neither the Company, the Partnership or any Subsidiary is and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended;
Each of the Company, the Partnership and the Subsidiaries have good and marketable title to the properties and assets, as described in the Prospectus, owned by them, free and clear of all liens, charges, encumbrances or restrictions, except such as are described in the Prospectus or are not material in relation to the business of the Company, the Partnership and the Subsidiaries. The Company, the Partnership and the Subsidiaries have valid, subsisting and enforceable leases for the properties described in the Prospectus as leased by the Company, the Partnership and the Subsidiaries with such exceptions as are not material and do not interfere with the use made and proposed to be made of such properties by the Company, the Partnership and the Subsidiaries. No tenant under any of the leases pursuant to which the Company, the Partnership or any of the Subsidiaries lease their properties has an option or right of first refusal to purchase the premises demised under such lease. The use and occupancy of each of the properties of the Company, the Partnership and the Subsidiaries complies in all material respects with all applicable codes and zoning laws and regulations; such counsel does not have knowledge of any pending or threatened condemnation or zoning change that will in any material respect affect the size of, use of, improvement of, construction on, or access to any of the properties of the Company, the Partnership and the Subsidiaries;
The Company, the Partnership and the Subsidiaries hold all material licenses, certificates and permits from governmental authorities which are necessary to the conduct of their businesses and are in compliance with the terms and conditions of such licenses, certificates and permits; and such counsel does not have knowledge of any notice of proceedings relating to the revocation or modification of any such permits, licenses or certificates that, if determined adversely to the Company, the Partnership or any Subsidiary, would have a Material Adverse Effect; and
The Partnership Agreement has been duly and validly authorized, executed and delivered by the general partner and constitutes a valid and binding agreement, enforceable against the general partner in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally or by general principles of equity.
The Underwriters shall have received from Hunton & Xxxxxxxx LLP, Underwriters' counsel, such opinion or opinions, dated the Closing Date, with respect to the organization of the Company, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as the Underwriters reasonably may request, and such counsel shall have received such papers and information as they request to enable them to pass upon such matters.
At the time of
execution of this Underwriting Agreement and at the Closing Date, the
Underwriters shall have received a "comfort letter," dated the date of delivery
thereof, from Ernst &
Young LLP, the independent public accountants of the Company, in the form previously agreed to by
Wachovia Securities, Inc.
The Underwriters shall have received from the Company a certificate, signed by the President or a Vice President and by the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that, to the best of their knowledge based upon reasonable investigation:
The representations and warranties of the Company in this Underwriting Agreement are true and correct, as if made at and as of the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
No stop order suspending the effectiveness of the Registration Statement or the use of any Prospectus has been issued, and no proceeding for that purpose has been instituted or is threatened by the Commission nor has any state securities authority suspended the qualification or registration of the Securities for offering or sale in any jurisdiction;
Since the effective date of the Registration Statement, there has occurred no event required to be set forth in an amendment or supplement to the Registration Statement or Prospectus that has not been so set forth, and there has been no document required to be filed under the Exchange Act and the Exchange Act Rules and Regulations of the Commission thereunder that upon such filing would be deemed to be incorporated by reference in the Prospectus that has not been so filed;
Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (a) there has not been, and no development has occurred which could reasonably be expected to result in, a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company, the Partnership and the Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (b) neither the Company, the Partnership nor any of the Subsidiaries has sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus; and such other matters as Wachovia Securities, Inc. or Underwriters' counsel may reasonably request.
Prior to the Closing Date, the Securities shall have been duly authorized for listing by the NYSE upon official notice of issuance.
The holders of the Company's Series B Cumulative Convertible Preferred Stock shall have consented to the issuance of the Securities.
All such
opinions, certificates, letters and other documents will be in compliance with
the provisions hereof only if they are satisfactory in form and substance to
Wachovia Securities, Inc. and Underwriter's counsel. The Company will furnish the Underwriters with such conformed copies of
such opinions,
certificates, letters and other documents as the Underwriters shall reasonably
request and the Company shall furnish to the Underwriters such further
certificates and documents as Wachovia Securities, Inc. shall have reasonably
requested.
Indemnification and Contribution.
The Company and the Partnership jointly and severally agree to indemnify and hold harmless each Underwriter, their respective directors, officers, employees and agents and each person, if any, who controls them within the meaning of Section 15 of the Act or Section 20 of the Exchange Act from and against any and all losses, claims, liabilities, expenses and damages (including, but not limited to, any and all investigative, legal and other expenses reasonably incurred in connection with, and any and all amounts paid in settlement of, any action, suit or proceeding between any of the indemnified parties and any indemnifying parties or between anyindemnified party and any third party, or otherwise, or any claim asserted), as and when incurred to which the Underwriter, or any such person, may become subject under the Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, liabilities, expenses or damages arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus supplement, the Registration Statement or the Prospectus or any amendment or supplement to the Registration Statement or the Prospectus or in any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus, or in any application or other document executed by or on behalf of the Company or the Partnership based on written information furnished by or on behalf of the Company or the Partnership filed in any jurisdiction in order to qualify the Securities under the securities or blue sky laws thereof or filed with the Commission, (ii) the omission or alleged omission to state in such document a material fact required to be stated in it or necessary to make the statements in it not misleading or (iii) any act or failure to act or any alleged act or failure to act by the Underwriters in connection with, or relating in any manner to, the Securities or the offering contemplated hereby, and which is included as part of or referred to in any loss, claim, damage, liability or action arising out of or based upon matters covered by clause (i) or (ii) above, provided, that the Company shall not be liable under this clause (iii) to the extent it is finally judicially determined by a court of competent jurisdiction that such loss, claim, damage, liability or action resulted directly from any such acts or failures to act undertaken or omitted to be taken by the Underwriters through their gross negligence or willful misconduct), and provided, further, that the Company will not be liable to the extent that such loss, claim, liability, expense or damage arises from the sale of the Securities in the public offering to any person and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information relating to the Underwriters furnished in writing to the Company by Wachovia Securities, Inc. expressly for inclusion in the Registration Statement or the Prospectus. The Underwriters confirm to the Company and the Company acknowledges that only the following information appearing in the Prospectus with respect to the public offering of the Securities has been furnished to the Company by the Underwriters for use in the Preliminary Prospectus Supplement and the Prospectus Supplement: the information in the third and sixth paragraphs under the caption "Underwriting" in the Prospectus Supplement. This indemnity agreement will be in addition to any liability that the Company or the Partnership might otherwise have.
Each Underwriter will indemnify and hold harmless the Company, each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, each director of the Company and each officer of the Company who signs the Registration Statement to the same extent as the foregoing indemnity from the Company to such Underwriter, but only insofar as losses, claims, liabilities, expenses or damages arise out of or are based on any untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with the information relating to such Underwriter furnished in writing to the Company by Wachovia Securities, Inc. expressly for use in the Registration Statement, the Preliminary Prospectus Supplement or the Prospectus Supplement as set forth in the second to last sentence of Section 0 above. This indemnity will be in addition to any liability that the Underwriters might otherwise have; provided, however, that in no case shall any Underwriter be liable or responsible for any amount in excess of the underwriting discounts and commissions received by such Underwriter.
Any party that proposes to assert the right to be
indemnified under this Section 0
will, promptly after receipt of notice of commencement of any action against
such party in respect of which a claim is to be made against
an indemnifying party or parties under this Section 0,
notify each such indemnifying party of the commencement of such action,
enclosing a copy of all papers served, but the omission so to notify such
indemnifying party will not relieve it from any liability that it may have to
any indemnified party under the foregoing provisions of this Section 0
unless, and only to the extent that, such omission results in the forfeiture of
substantive rights or defenses by the indemnifying party. If any such
action is brought against any indemnified party and it notifies the indemnifying
party of its commencement, the indemnifying party will be entitled to
participate in and, to the extent that it elects by delivering written notice to
the indemnified party promptly after receiving notice of the commencement of the
action from the indemnified party, jointly with any other indemnifying party
similarly notified, to assume the defense of the action, with counsel
satisfactory to the indemnified party, and after notice from the indemnifying
party to the indemnified party of its election to assume the defense, the
indemnifying party will not be liable to the indemnified party for any legal or
other expenses except as provided below and except for the reasonable costs of
investigation subsequently incurred by the indemnified party in connection
with the defense. The indemnified party will have the right to employ its
own counsel in any such action, but the fees, expenses and other charges of such
counsel will be at the expense of such indemnified party unless (1) the
employment of counsel by the indemnified party has been authorized in writing by
the indemnifying party, (2) the indemnified party has reasonably concluded
(based on advice of counsel) that there may be legal defenses available to it or
other indemnified parties that are different from or in addition to those
available to the indemnifying party, (3) a conflict or potential conflict exists
(based on advice of counsel to the indemnified party) between the indemnified
party and the indemnifying party (in which case the indemnifying party will not
have the right to direct the defense of such action on behalf of the indemnified
party) or (4) the indemnifying party has not in fact employed counsel to assume
the defense of such action within a reasonable time after receiving notice of
the commencement of the action, in each of which cases the reasonable fees,
disbursements and other charges of counsel will be at the expense of the
indemnifying party or parties. It is understood that the indemnifying
party or parties shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one additional firm admitted to
practice in such jurisdiction at any one time for all such indemnified party or
parties. All such fees, disbursements and other charges will be reimbursed
by the indemnifying party promptly as they are incurred. An indemnifying party
will not be liable for any settlement of any action or claim effected without
its written consent (which consent will not be unreasonably
withheld); provided however, no
indemnifying party shall, without the prior written consent of each indemnified
party, settle or compromise or consent to the entry of any judgment in any
pending or threatened claim, action or proceeding relating to the matters
contemplated by this Section 0
(whether or not any indemnified party is a party thereto), unless such
settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising or that may arise out of such
claim, action or proceeding. Notwithstanding
any other provision of this Section 0,
if at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement effected
without its written consent if (i) such settlement is entered into more than 45
days after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall have received notice of the terms of such settlement
at least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 0
is applicable in accordance with its terms
but for any reason is held to be unavailable from the Company and the
Partnership or any Underwriter, the Company, the Partnership and the
Underwriters will contribute to the total losses, claims, liabilities, expenses
and damages (including any investigative, legal and other expenses reasonably
incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claim asserted, but after deducting any contribution
received by the Company from persons other than the Underwriters, such as
persons who control the Company within the meaning of the Act, officers of the
Company who signed the Registration Statement and directors of the Company, who
also may be liable for contribution) to which the Company and the Underwriters
may be subject in such proportion as shall be appropriate to reflect the
relative benefits received by the Company and the Partnership on the one hand
and the Underwriters on the other. The relative benefits received by the
Company and the Partnership on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by each Underwriter, in each
case as set forth in the table on the cover page of the Prospectus Supplement.
If, but only if, the allocation provided by the foregoing sentence is not
permitted by applicable law, the allocation of contribution shall be made in
such proportion as is appropriate to reflect not only the relative benefits
referred to in the foregoing sentence but also the relative
fault of the Company and the Partnership on the one hand, and each Underwriter,
on the other, with respect to the statements or omissions which resulted in such
loss, claim, liability, expense or damage, or action in respect thereof, as
well as any other relevant equitable considerations with respect to such
offering. Such relative fault shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Underwriter, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company, the Partnership and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this Section 0
were to be determined by pro rata allocation or by any other method of
allocation which does not take into account the equitable considerations
referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, liability,
expense or damage, or action in respect thereof, referred to above in this Section
0
shall be deemed to include, for purpose of this Section 0,
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section
0,
no Underwriter shall be required to contribute any amount in excess of the underwriting
discounts and commissions received by such Underwriter and no person found
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) will be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For
purposes of this Section 0,
any person who controls a party to this Underwriting Agreement within the
meaning of the Act will have the same rights to contribution as that party, and
each officer of the Company who signed the Registration Statement will have the
same rights to contribution as the Company, subject in each case to the
provisions hereof. Any party entitled
to contribution, promptly after receipt of notice of commencement of any action
against such party in respect of which a claim for contribution may be made
under this Section 0,
will notify any such party or parties from whom contribution may be sought, but
the omission so to notify will not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have under
this Section 0. Except for a settlement entered into
pursuant to the last sentence of Section 0
hereof, no party will be liable for contribution with respect to any action or
claim settled without its written consent (which consent will not be
unreasonably withheld).
The indemnity and contribution agreements contained in this Section 0 and the representations and warranties of the Company and the Partnership contained in this Underwriting Agreement shall remain operative and in full force and effect regardless of (i) any investigation made by or on behalf of the Underwriters, (ii) acceptance of the Securities and payment therefor or (iii) any termination of this Underwriting Agreement.
Representations and Agreements to Survive Delivery. All representations, warranties and agreements of the Company and the Partnership contained herein or in certificates delivered pursuant hereto, and the Underwriters'agreements contained in Section 0 hereof, shall remain operative and in full force and effect regardless of any investigation made by or on behalf of the Underwriters or any controlling persons, or the Company or any of its officers, directors or any controlling persons, and shall survive delivery of and payment for the Securities hereunder.
Substitution of Underwriters.
If any Underwriter shall fail to take up and pay for the aggregate number of Securities agreed by such Underwriter to be purchased hereunder, upon tender of such Securities in accordance with the terms hereof, and the aggregate number of Securities not purchased does not aggregate more than 10% of the total number of Securities that the Underwriters are obligated to purchase hereunder at the Closing Date, the remaining Underwriter shall be obligated to take up and pay for the Securities that the defaulting Underwriter agreed but failed to purchase.
If any Underwriter shall fail to
take up and pay for the aggregate number of Securities agreed by such
Underwriter to be purchased hereunder, upon tender of such Securities in
accordance with the
terms hereof, and the number of Securities not purchased
aggregates more than 10% of the total number of Securities that the
Underwriters are obligated to purchase hereunder at the Closing Date, and
arrangements satisfactory to the non-defaulting Underwriter and the Company for
the purchase of such Securities by other persons are not made within 36 hours
thereafter, this Agreement shall terminate.
In the event of any such termination, the Company shall not be under any
liability to any Underwriter with respect to Securities not purchased by reason
of such termination (except to the extent provided in Section 0,
regarding payment of expenses, and Section 0,
regarding indemnification and contribution, hereof) nor shall any Underwriter
(other than an Underwriter who failed, otherwise than for a reason permitted
under this Agreement, to purchase the number of Securities agreed by such
Underwriter to be purchased hereunder) be under any liability to the Company
with respect to such Securities (except to the extent provided in Section 0
hereof).
Termination. The Underwriters shall have the right, pursuant to notice given by Wachovia Securities, Inc. as hereinafter specified at any time at or prior to the Closing Date, to terminate this Underwriting Agreement if (i) the Company shall have failed, refused or been unable, at or prior to the Closing Date, to perform any agreement on its part to be performed hereunder, (ii) any other condition of the Underwriters' obligations hereunder is not fulfilled when due, (iii) trading on the NYSE shall have been wholly suspended, (iv) minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for the Series D Preferred Stock shall have been required on the NYSE by the NYSE or by order of the Commission or any other governmental authority having jurisdiction, (v) a banking moratorium shall have been declared by federal or New York authorities, or (vi) an outbreak or escalation of hostilities in which the United States is involved, a declaration of war by Congress, any other substantial national or international calamity or crisis or any other event or occurrence of a similar character shall have occurred since the execution of this Underwriting Agreement that, in the sole judgment of Wachovia Securities, Inc., makes it impractical or inadvisable to proceed with the completion of the sale of and payment for the Securities. Any such termination shall be without liability of any party to any other party with respect to Securities not purchased by reason of such termination except that the provisions of Section 0 and Section 0 hereof shall at all times be effective. If Wachovia Securities, Inc. elects to terminate this Underwriting Agreement as provided in this Section, the Company shall be notified promptly by telephone or telecopy, confirmed by letter.
Notices. All notices or communications hereunder shall be in writing and if sent to the Underwriters shall be mailed, delivered or telecopied and confirmed to the Underwriters c/o Wachovia Securities, Inc., One Wachovia Center, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, attention: Xx. Xxxxxx Xxx (with copy to Hunton & Xxxxxxxx, Riverfront Plaza, East Tower, 000 X. Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, attention: Xxxxxxx X. Xxxxx, Esq.,), or if sent to the Company, shall be mailed, delivered or telecopied and confirmed to Parkway Properties, Inc., 300 One Xxxxxxx Place, 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxx 00000, attention: Xxxxxx X. Xxxxxx (with copy to Xxxxxxx Xxxxxxxxxxx & Mugel, LLP, Fleet Bank Building, Twelve Xxxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxx 00000-0000, attention: Xxxxxx X. Xxxxxxx, Esq.). Any party to this Underwriting Agreement may change such address for notices by sending to the other party to this Underwriting Agreement written notice of a new address for such purpose.
Parties. This Underwriting Agreement shall inure to the benefit of, and be binding upon, the Company, the Partnership and the Underwriters and their respective successors and the controlling persons, officers, directors, employees and representatives referred to in Section 0 hereof, and no other person will have any right or obligation hereunder.
Applicable Law. This Underwriting Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.
[Signatures appear on following page.]
If the foregoing correctly sets forth the understanding between the Company, the Partnership and the Underwriters, please so indicate in the space provided below for that purpose, whereupon this letter shall constitute a binding agreement between the Company, the Partnership and the Underwriters.
Very truly yours,
PARKWAY PROPERTIES, INC.
By:/s/ Xxxxxxxx X. Loeb___________
Name: Xxxxxxxx X. Xxxx
Title: Chief Financial Officer
PARKWAY PROPERTIES LP
By: Parkway Properties General Partners, Inc., its
sole general partner
By:/s/ Xxxxxxxx X. Loeb___________
Name: Xxxxxxxx X. Xxxx
Title: Chief Financial Officer
ACCEPTED as of the date first above written
WACHOVIA SECURITIES, INC.
By:/s/ Xxxxxxx Ingram____________
Name: Xxxxxxx Xxxxxx
Title: Managing Director
X.X. XXXXXXX & SONS, INC.
By:/s/ Xxxxxxx X. Bluhm__________
Name: Xxxxxxx X. Xxxxx
Title: Director
SCHEDULE A
Subsidiaries
Parkway Properties One Park Ten, L.P.
Parkway Properties One Park Ten General Partner, Inc.
Parkway 000 Xxxxx Xxxxxxxx, XXX
Xxxxxxx 000 Xxxxx Xxxxxxxx Manager, Inc.
Parkway Properties General Partners, Inc.
Parkway Realty Services LLC
Parkway Mississippi LLC
Parkway Xxxxxxx LLC
Wink/Parkway Partnership (50% interest)
Parkway Properties Tax Administration LLC
Golf Properties, Inc. (95% non-voting interest)
Parkway Xxxxx LLC
111 Capitol Building XX
Xxxxx Building Assoc. XX
Xxxxx Garage, LLC
Parkway Xxxxx LLC
Parkway Capitol Center, LLC
Parkway Orlando, LLC
Parkway Orlando Manager, Inc.
Phoenix OfficeInvest, LLC
Phoenix Viad Manager, Inc.
Parkway JHLIC LP
Parkway Properties FCT General Partner, Inc.
Parkway Properties FCT Limited Partner, LP
Parkway Joint Venture, LLC
SCHEDULE B
|
Underwriter |
Number of Securities to be Purchased |
|
Wachovia Securities, Inc. |
1,200,000 |
|
X.X. Xxxxxxx & Sons, Inc. |
1,200,000 |
|
Total |
2,400,000 |
