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Exhibit 1.1
$50,000,000
GABLES REALTY LIMITED PARTNERSHIP
6.55% SENIOR NOTES DUE 2000
UNDERWRITING AGREEMENT
DATED SEPTEMBER 30, 1998
PAINEWEBBER INCORPORATED
CHASE SECURITIES INC.
X.X. XXXXXX SECURITIES INC.
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$50,000,000
GABLES REALTY LIMITED PARTNERSHIP
6.55% Senior Notes due 2000
UNDERWRITING AGREEMENT
September 30, 1998
PAINEWEBBER INCORPORATED
CHASE SECURITIES INC.
X.X. XXXXXX SECURITIES INC.
c/o PAINEWEBBER INCORPORATED
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
INTRODUCTORY. Gables Realty Limited Partnership, a Delaware limited
partnership (the "Operating Partnership") of which the sole general partner is
Gables GP, Inc. ("Gables GP"), a Texas corporation and a wholly-owned subsidiary
of Gables Residential Trust, a Maryland real estate investment trust (the "REIT"
and, together with the Operating Partnership and Gables GP, the "Company"),
proposes to sell to the Underwriters named in SCHEDULE 1 hereto (the
"Underwriters") the aggregate principal amounts listed in SCHEDULE 1 hereto of
the Operating Partnership's debt securities identified in SCHEDULE 2 hereto (the
"Securities"), to be issued under that certain indenture, dated as of March 23,
1998, as supplemented by that certain First Supplemental Indenture, dated as of
March 23, 1998, and a Second Supplemental Indenture, to be dated as of September
30, 1998, each by and between the Operating Partnership and First Union National
Bank (the "Trustee"), as trustee (as so supplemented, the "Indenture").
The REIT and the Operating Partnership confirm their agreements with
the Underwriters as follows.
1. AGREEMENT TO SELL AND PURCHASE.
On the basis of the representations, warranties and agreements
contained herein, but subject to the terms and conditions set forth herein, the
Operating Partnership agrees to issue and sell the Securities to the
Underwriters as hereinafter provided, and the Underwriters agree to purchase
from the Operating Partnership the Securities at the purchase price set forth in
SCHEDULE 2 hereto plus accrued interest, if any, from the date specified in
SCHEDULE 2 hereto to the date of payment and delivery.
The Company understands that the Underwriters intend (i) to make a
public offering of the Securities, and (ii) initially to offer the Securities
upon the terms set forth in the Prospectus.
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2. DELIVERY AND PAYMENT.
Payment for the Securities shall be made to the Operating Partnership
or to its order in immediately available funds in the amount and on the date and
time set forth in SCHEDULE 2 hereto or at such place and at such other time on
the same date or such other date, not later than the eighth Business Day
thereafter, as the Underwriters and the Operating Partnership may agree in
writing (or if the NYSE or American Stock Exchange or commercial banks in the
City of New York are not open on such day, the next day on which such exchanges
and banks are open). Such payment will be made upon delivery to the Underwriters
of the Securities registered in such names and in such denominations as the
Underwriters shall request not less than two full Business Days prior to the
date of delivery, with transfer taxes, if any, payable in connection with
transfer to the Underwriters duly paid by the Company. As used herein, the term
"Business Day" means any day other than a day on which banks are permitted or
required to be closed in New York City. The time and date of such payment and
delivery with respect to the Securities are referred to herein as the "Closing
Date." The Securities will be delivered through the book entry facilities of The
Depository Trust Company ("DTC") and, if requested by the Underwriters, will be
made available for inspection by the Underwriters no later than 1:00 P.M. New
York City time on the Business Day prior to the Closing Date at such place in
New York City as the Underwriters, DTC and the Operating Partnership shall
agree.
The cost of original issue tax stamps, if any, in connection with the
issuance and delivery of the Securities by the Operating Partnership to the
Underwriters shall be borne by the Company. The Company will pay and save the
Underwriters and any subsequent holder of the Securities harmless from any and
all liabilities with respect to or resulting from any failure or delay in paying
Federal and state stamp and other transfer taxes, if any, which may be payable
or determined to be payable in connection with the original issuance or sale to
the Underwriters of the Securities.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The REIT and the
Operating Partnership, jointly and severally, represent, warrant and covenant to
the Underwriters that:
(a) The Operating Partnership meets the requirements for use of
Form S3 and a registration statement (Registration No. 333-30093) on Form
S-3 relating to the Securities, including a prospectus (as amended, the
"Base Prospectus"), has 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 "Rules and Regulations") of
the Securities and Exchange Commission (the "Commission") thereunder and
has been filed with the Commission and has become effective; and on or
prior to the Closing Date the Indenture shall have been qualified under the
Trust Indenture Act of 1939, as amended (together with the rules and
regulations of the Commission thereunder, the "Trust Indenture Act"). Such
registration statement and prospectus may have been amended or supplemented
prior to the date of this Agreement; any such amendment or supplement was
so prepared and filed, and any such amendment filed after the effective
date of such registration statement has become effective. No stop order
suspending the effectiveness of the registration statement has been issued,
and no proceeding for that purpose has been instituted or, to the Company's
knowledge, threatened by the Commission. Copies of such registration
statement and prospectus, 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 Agreement have been delivered or
made available to the Underwriters. A prospectus supplement (the
"Prospectus Supplement") setting forth the terms of the Securities and of
their sale and distribution has been or will be so prepared and will be
filed pursuant to Rule 424(b) of the Rules and Regulations on or
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before the second business day after the date hereof (or such earlier time
as may be required by the Rules and Regulations). The term "Registration
Statement" means such registration statement as amended at the time it
became effective (the "Effective Date"), including financial statements and
all exhibits and any information deemed by virtue of Rule 430A of the Rules
and Regulations to be included in such Registration Statement at the
Effective Date and any prospectus supplement filed thereafter with the
Commission and shall include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). The term
"Prospectus" means, collectively, the Base Prospectus together with any
prospectus supplement, in the respective forms they are filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations, and
includes the documents incorporated by reference in the Base Prospectus and
in any prospectus supplement. Any reference herein to the terms "amend,"
"amendment" or "supplement" with respect to the Registration Statement or
the Prospectus shall be deemed to refer to and include the filing after the
execution hereof of any document with the Commission deemed to be
incorporated by reference therein. For purposes of this Underwriting
Agreement, all references to the Registration Statement, the Prospectus or
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
(except to the extent permitted by Regulation S-T) to any Registration
Statement or Prospectus, as the case may be, delivered to you for use in
connection with the offering of the Securities by the Operating
Partnership.
(b) 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, including the financial statements included or to be
included or incorporated by reference or to be incorporated by reference in
the Registration Statement or the Prospectus, conformed or will conform in
all material respects with the requirements of the Act, the Rules and
Regulations, the Exchange Act and the rules and regulations thereunder (the
"Exchange Act Rules and Regulations") and will contain all statements
required to be stated therein in accordance with the Act, the Rules and
Regulations, the Exchange Act and the Exchange Act Rules and Regulations;
the Indenture, on the date of filing thereof with the Commission and at the
Closing Date conformed or will conform in all material respects with the
requirements of the Trust Indenture Act; each part of the Registration
Statement, when such part became or becomes effective, 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 light of the circumstances under which they were made, not
misleading. The foregoing representations and warranties in this Section
3(b) do not apply to (i) that part of the Registration Statement which
constitutes the Statement of Eligibility and Qualification under the Trust
Indenture Act (the "Form T-1") and (ii) any statements or omissions made in
reliance on and in conformity with information relating to any Underwriter
furnished in writing to the Company by such Underwriter specifically for
inclusion in the Registration Statement or the Prospectus or any amendment
or supplement thereto. The Company acknowledges that the only information
furnished in writing to the Company by the Underwriters specifically for
inclusion in the Registration Statement, any preliminary prospectus or the
Prospectus is the information set forth in EXHIBIT A hereto. The Company
has not distributed any offering material in connection with the offering
or sale of the Securities other than the Registration Statement, the
Prospectus, or other materials, if any, permitted by the Act.
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(c) The documents incorporated or to be incorporated by
reference in the Registration Statement or the Prospectus or any amendment
or supplement thereto or from which information is so incorporated by
reference, when they became or become effective or were or are filed with
the Commission, as the case may be, complied or will comply in all material
respects with the requirements of the Act or the Exchange Act, as
applicable, the Exchange Act Rules and Regulations and the Rules and
Regulations.
(d) The only subsidiaries (as defined in the Rules and
Regulations) of the Company are the subsidiaries listed on SCHEDULE 3
hereto (the "subsidiaries"). The Company and each of its subsidiaries is,
and at the Closing Date will be, an entity duly organized or formed, as the
case may be, and, in the case of an entity that is not a general
partnership, validly existing and in good standing under the laws of the
jurisdiction of its organization or incorporation. The Company and each of
its subsidiaries has, and at the Closing Date will have, full power and
authority to conduct all the activities conducted by it, to own or lease
all the assets owned or leased by it and to conduct its business as
described in the Registration Statement and the Prospectus. The Company and
each of its subsidiaries is, and at the Closing Date will be, duly licensed
or qualified to do business and (except for subsidiaries that are general
partnerships) in good standing as a foreign trust, limited partnership or
corporation, as the case may be, in all jurisdictions in which the nature
of the activities conducted by it or the character of the assets owned or
leased by it makes such licensing or qualification necessary except where
the failure to be so qualified does not have a material adverse effect on
the business, properties, financial position or results of the Company and
its subsidiaries, taken as a whole. Except for the stock or partnership
interests of the subsidiaries and as disclosed in the Registration
Statement, the Company does not own, and at the Closing Date will not own,
directly or indirectly, any shares of stock or any other equity or
long-term debt securities of any corporation or have any equity interest in
any firm, partnership, joint venture, association or other entity. Complete
and correct copies of the Amended and Restated Declaration of Trust and the
Second Amended and Restated By-laws of the Company and the charter
documents of each of its subsidiaries and all amendments thereto have been
delivered or made available to the Underwriters and no changes therein will
be made subsequent to the date hereof and prior to the Closing Date.
(e) The outstanding securities of the REIT, have been duly
authorized, validly issued, fully paid and nonassessable and will not be
subject to any preemptive or similar right. The description of the REIT's
common shares of beneficial interest, par value $0.01 per share (the
"Common Shares") in the Registration Statement and the Prospectus is, and
at the Closing Date will be, in all material respects, complete and
accurate. Except as set forth in the Prospectus, the REIT does not have
outstanding, and at the Closing Date will not have outstanding, any options
to purchase, or any rights or warrants to subscribe for, or any securities
or obligations convertible into, or any contracts or commitments to issue
or sell, any Common Shares, any preferred shares of the REIT, any shares of
capital stock of any subsidiary or any such warrants, convertible
securities or obligations other than (i) pursuant to the REIT's dividend
reinvestment plan and (ii) the REIT's Third Amended and Restated 1994 Share
Option and Incentive Plan, as amended.
(f) The outstanding securities of the Operating Partnership,
have been duly authorized and validly issued and will not be subject to any
preemptive or similar right. Except as set forth in the Prospectus, the
Operating Partnership does not have outstanding, and at the Closing Date
will not have outstanding, any options to purchase, or any rights or
warrants to subscribe for, or any securities or obligations convertible
into, or any contracts or commitments to issue or sell,
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any shares of capital stock of the Operating Partnership. There are no
requirements, restrictions or limitations in the terms of the preferred
units of partnership interest in the Operating Partnership ("Preferred
Units") applicable to the issuance and sale of the Securities.
(g) The Securities will be, as of the Closing Date, duly
authorized by the Operating Partnership for issuance and sale pursuant to
this Underwriting Agreement and the Indenture, and when duly authenticated
and delivered by the Trustee in accordance with the terms of the Indenture
(assuming the due authorization, execution and delivery of the Indenture by
the Trustee), and delivered to, and paid for in full by, the Underwriters
pursuant to this Underwriting Agreement, will be valid and legally binding
obligations of the Operating Partnership entitled to the benefit of the
Indenture and will be enforceable against the Company in accordance with
their terms, subject to (a) applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally, (b) general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or law), (c) the discretion
of the court before which any proceeding therefor may be brought, and (d)
applicable Federal and state securities laws and public policy which may
limit the application of provisions relating to indemnification and
contribution with respect to securities law matters (clauses (a), (b), (c)
and (d) are collectively referred to as the "Enforceability Limitations");
the Indenture has been duly qualified under the Trust Indenture Act and
prior to the issuance of the Securities will be duly authorized, executed
and delivered by the Operating Partnership, and assuming due authorization,
execution and delivery thereof by the Trustee, will constitute a valid and
legally binding obligation of the Operating Partnership, enforceable
against the Operating Partnership in accordance with its terms, subject to
the Enforceability Limitations; the Securities and the Indenture will
conform in all material respects to the statements relating thereto
contained in the Prospectus; and the Securities will be, in all material
respects, in the form contemplated by the Indenture.
(h) The financial statements and schedules of the Company
included or incorporated by reference in the Registration Statement or the
Prospectus present fairly the consolidated financial condition of the
Company as of the respective dates thereof and the consolidated results of
operations and cash flows of the Company for the respective periods covered
thereby, all in conformity with generally accepted accounting principles
applied on a consistent basis throughout the entire period involved, except
as otherwise disclosed in the Prospectus. The pro forma financial
statements of the Company, if any, included in the Registration Statement
and the Prospectus comply in all material respects with the applicable
requirements of Rule 11-02 of Regulation S-X of the Commission and the pro
forma adjustments have been properly applied to the historical amounts in
the compilation of such statements. No other financial statements or
schedules of the Company are required by the Act, the Exchange Act or the
Rules and Regulations to be included in the Registration Statement or the
Prospectus. Xxxxxx Xxxxxxxx LLP, independent public accountants (the
"Accountants"), who have reported on those of such financial statements and
schedules which are audited, are independent accountants with respect to
the Company as required by the Act and the Rules and Regulations. The
statements included in the Registration Statement with respect to the
Accountants pursuant to Rule 509 of Regulation S-K of the Rules and
Regulations are true and correct in all material respects.
(i) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions
are executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain
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accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(j) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus and prior to the
Closing Date, except as set forth in or contemplated by the Registration
Statement and the Prospectus, (i) there has not been and will not have been
any change in the capitalization of the Company, or in the business,
properties, business prospects, condition (financial or otherwise) or
results of operations of the Company and its subsidiaries, arising for any
reason whatsoever, other than pursuant to the REIT's dividend reinvestment
plan or by way of grants of Common Shares or options to purchase Common
Shares or the exercise of such options, in any such case under the
Company's Third Amended and Restated 1994 Share Option and Incentive Plan,
as amended, (ii) neither the Company nor any of its subsidiaries has
incurred nor will it incur any material liabilities or obligations, direct
or contingent, nor has it entered into nor will it enter into any material
transactions other than pursuant to this Agreement and the transactions
referred to herein and (iii) the Company has not and will not have paid or
declared any dividends or other distributions of any kind on any class of
its capital stock.
(k) The Company is not an "investment company" or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an "investment
company," as such terms are defined in the Investment Company Act of 1940,
as amended.
(l) Except as set forth in the Registration Statement and the
Prospectus, there are no actions, suits or proceedings pending or
threatened against or affecting the Company or any of its subsidiaries or
any of their respective officers in their capacity as such, before or by
any Federal or state court, commission, regulatory body, administrative
agency or other governmental body, domestic or foreign, wherein an
unfavorable ruling, decision or finding might materially and adversely
affect the Company or any of its subsidiaries or its business, properties,
business prospects, condition (financial or otherwise) or results of
operations.
(m) The Company and each of its subsidiaries has, and at the
Closing Date will have, (i) all governmental licenses, permits, consents,
orders, approvals and other authorizations necessary to carry on its
business as contemplated in the Prospectus, except where failure to obtain
any of the foregoing will not have a material adverse effect on the
business, properties, business prospects, condition (financial or
otherwise) or results of operations of the Company and its subsidiaries,
taken as a whole (a "Material Adverse Effect"), (ii) complied in all
material respects with all laws, regulations and orders applicable to it or
its business except where failure to comply with any of the foregoing would
not have a Material Adverse Effect, and (iii) performed all its material
obligations required to be performed by it, and is not, and at the Closing
Date will not be, in default, under any indenture, mortgage, deed of trust,
voting trust agreement, loan agreement, bond, debenture, note agreement,
lease, contract or other agreement or instrument (collectively, a "contract
or other agreement") to which it is a party or by which its property is
bound or affected, the violation of which would have a Material Adverse
Effect. To the best knowledge of the Company and each of its subsidiaries,
no other party under any contract or other agreement to which it is a party
is in default thereunder in such a manner that, individually or in the
aggregate, would have a reasonable likelihood of causing a Material Adverse
Effect. The Company is not, nor at the Closing Date will be, in violation
of any provision of its Amended and Restated Declaration of Trust
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and Second Amended and Restated By-laws. No subsidiary of the Company is,
nor at the Closing Date will any of them be, in violation of any provision
in their respective charter documents.
(n) No consent, approval, authorization or order of, or any
filing or declaration with, any court or governmental agency or body is
required for the consummation by the Company of the transactions on its
part herein contemplated, except such as have been obtained under the Act
or the Rules and Regulations and such as may be required under state or
Canadian securities or blue sky laws or the by-laws and rules of the
National Association of Securities Dealers, Inc. (the "NASD") in connection
with the purchase and distribution by the Underwriters of the Securities to
be sold by the Company.
(o) The Operating Partnership has full power and authority to
enter into this Agreement and the Indenture. The REIT has full power and
authority to enter into this Agreement and the Indenture. This Agreement
has been duly authorized, executed and delivered by the REIT and the
Operating Partnership and constitutes a valid and binding agreement of the
REIT and the Operating Partnership and is enforceable against the REIT and
the Operating Partnership in accordance with the terms hereof. The
performance of this Agreement and the Indenture and the consummation of the
transactions contemplated hereby and thereby will not result in the
creation or imposition of any lien, charge or encumbrance upon any of the
assets of the Company or any of its subsidiaries pursuant to the terms or
provisions of, or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or give any other party a
right to terminate any of its obligations under, or result in the
acceleration of any obligation under, the Amended and Restated Declaration
of Trust or Second Amended and Restated By-laws of the REIT or the
Partnership Agreement and any other organizational documents of the
Operating Partnership or the charter documents of Gables GP or any of the
Company's subsidiaries, any contract or other agreement to which the
Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries or any of its properties is bound or affected, or
violate or conflict with any judgment, ruling, decree, order, statute, rule
or regulation of any court or other governmental agency or body applicable
to the business or properties of the Company or any of its subsidiaries.
(p) The Company and each of its subsidiaries has good and
marketable title to all properties and assets described in the Prospectus
as owned by it, free and clear of all liens, charges, encumbrances or
restrictions, except such as (i) are described in the Prospectus or (ii)
are not material to the business of the Company or its subsidiaries, taken
as a whole. The Company and each of its subsidiaries has valid, subsisting
and enforceable leases for the properties described in the Prospectus as
leased by it, with such exceptions as are not material and do not
materially interfere with the use made and proposed to be made of such
properties by the Company and such subsidiaries; no tenant under any of the
leases pursuant to which the Company leases its 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 complies in
all material respects with all applicable codes and zoning laws and
regulations; the Company has no knowledge of any pending or threatened
condemnation or zoning change that will in any material respect affect the
size of, use of, improvements of, construction on, or access to any of the
properties of the Company; and the Company has no knowledge of any pending
or threatened proceeding or action that will in any manner affect the size
of, use of, improvements on, construction on, or access to any of the
properties of the Company.
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(q) Title insurance in favor of the Company (or the subsidiary
which holds title to such property) is maintained with respect to each of
the properties owned by the Company in an amount at least equal to the
greater of (i) the cost of acquisition of such property or (ii) the cost of
construction by the Company of the improvements located on such property
(measured at the time of such construction), except, in each case, where
the failure to maintain such title insurance 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
taken as a whole. Title insurance in favor of the mortgagee is maintained
in an amount equal to the maximum commitment of the related loan.
(r) The mortgages and deeds of trust encumbering the properties
and assets described in the Prospectus are not convertible nor does the
Company hold a participating interest therein.
(s) The Company has no knowledge of (i) the unlawful presence of
any hazardous substances, hazardous materials, toxic substances or waste
materials (collectively, "Hazardous Materials") on any of the properties
owned by it, or (ii) any unlawful spills, releases, discharges or disposal
of Hazardous Materials that have occurred or are presently occurring off
such properties as a result of any construction on or operation and use of
such properties, which presence or occurrence would have a Material Adverse
Effect. In connection with the construction or operation and use of the
properties owned by the Company, the Company represents that, as of the
date of this Agreement, it has no knowledge of any failure to comply with
all applicable local, state and federal environmental laws, regulations,
ordinances and administrative and judicial orders relating to the
generation, recycling, reuse, sale, storage, handling, transport and
disposal of any Hazardous Materials, which failure would have a Material
Adverse Effect.
(t) Property and casualty insurance in favor of the Company is
maintained with respect to each of the properties owned by it in an amount
and on such terms as is reasonable and customary for businesses of this
type.
(u) There is no document or contract of a character required to
be described in the Registration Statement or the Prospectus or to be filed
as an exhibit to the Registration Statement which is not described or filed
as required. All such contracts and all contracts relating to any tax
exempt financings to which the Company or any subsidiary is a party have
been duly authorized, executed and delivered by the Company or such
subsidiary, constitute valid and binding agreements of the Company or such
subsidiary and are enforceable against the Company or such subsidiary in
accordance with the terms thereof.
(v) No statement, representation, warranty or covenant made by
the Company in this Agreement or made in any certificate or document
required by this Agreement to be delivered to the Underwriters was or will
be, when made, inaccurate, untrue or incorrect.
(w) Neither the Company nor any of its trustees, officers or
controlling persons has taken, directly or indirectly, any action intended,
or which might reasonably be expected, to cause or result, under the Act or
otherwise, in, or which has constituted, stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale
of the Securities.
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(x) No holder of securities of the Company has rights to the
registration of any securities of the Company because of the filing of the
Registration Statement.
(y) Neither the Company nor any of its subsidiaries is involved
in any material labor dispute nor, to the knowledge of the Company, is any
such dispute threatened.
(z) The Company and its subsidiaries own, or are licensed or
otherwise have the full exclusive right to use, all material trademarks and
trade names which are used in or necessary for the conduct of their
respective businesses as described in the Prospectus, including, without
limitation, the name "Gables" for use in connection with residential
communities. No claims have been asserted by any person to the use of any
such trademarks or trade names or challenging or questioning the validity
or effectiveness of any such trademark or trade name. The use, in
connection with the business and operations of the Company and its
subsidiaries of such trademarks and trade names does not, to the Company's
knowledge, infringe on the rights of any person.
(aa) Neither the Company nor any of its subsidiaries nor, to the
Company's knowledge, any employee or agent of the Company or any subsidiary
has made any payment of funds of the Company or any subsidiary or received
or retained any funds in violation of any law, rule or regulation or of a
character required to be disclosed in the Prospectus.
(bb) The REIT has continuously been organized and operated in
conformity with the requirements for qualification as a real estate
investment trust under the Internal Revenue Code of 1986, as amended (the
"Code") for all taxable years commencing with its taxable year ended
December 31, 1994. The REIT has filed an election to be taxable as a real
estate investment trust for its taxable year ended December 31, 1994, and
such election has not been terminated. The REIT's method of operation will
permit it to continue to meet the requirements for taxation as a real
estate investment trust under the Code. The REIT intends to continue to
operate in a manner which would permit it to qualify as a real estate
investment trust under the Code.
4. AGREEMENTS OF THE REIT AND THE OPERATING PARTNERSHIP. The REIT and
the Operating Partnership agree with the Underwriters as follows:
(a) The Company will cause the Prospectus Supplement to be filed
as required by Section 3(a) hereof (but only if the Underwriters 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 you
promptly of such filing. The Company will not, during such period as the
Prospectus is required by law to be delivered in connection with sales of
the Securities by any Underwriter or dealer (the "Prospectus Delivery
Period"), file any amendment or supplement to the Registration Statement or
the Prospectus, unless a copy thereof shall first have been submitted to
the Underwriters within a reasonable period of time prior to the filing
thereof and the Underwriters shall not have objected thereto in good faith.
(b) The Company will notify the Underwriters promptly, and will
confirm such advice in writing, (1) when any post-effective amendment to
the Registration Statement becomes effective, (2) of any request by the
Commission for amendments or supplements to the Registration Statement or
the Prospectus or for additional information, (3) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any
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proceedings for that purpose or the threat thereof, (4) of the happening of
any event during the Prospectus Delivery Period that in the judgment of the
Company makes any statement made in the Registration Statement or the
Prospectus untrue or that requires the making of any changes in the
Registration Statement or the Prospectus in order to make the statements
therein, in light of the circumstances in which they are made, not
misleading and (5) of receipt by the Company or any representative or
attorney of the Company of any other communication from the Commission
relating to the Company, the Registration Statement, or the Prospectus. If
at any time the Commission shall issue any order suspending the
effectiveness of the Registration Statement, the Company will make every
reasonable effort to obtain the withdrawal of such order at the earliest
possible moment.
(c) The Company will furnish to the Underwriters, upon request
and without charge, two signed copies of the Registration Statement and of
any post-effective amendment thereto, including financial statements and
schedules, and all exhibits thereto (including any document filed under the
Exchange Act and deemed to be incorporated by reference into the
Prospectus).
(d) The Company will comply with all the provisions of any
undertakings contained in the Registration Statement.
(e) The Company will deliver to each Underwriter, without
charge, as many copies of the Prospectus containing the Prospectus
Supplement or any amendment or supplement thereto as such Underwriter may
reasonably request. The Company consents to the use of the Prospectus or
any amendment or supplement thereto by the Underwriters and by all dealers
to whom the Securities may be sold, both in connection with the offering or
sale of the Securities and for any period of time thereafter during which
the Prospectus is required by law to be delivered in connection therewith.
If during such period of time any event shall occur which in the judgment
of the Company or counsel to the Underwriters should be set forth in the
Prospectus in order to make any statement therein, in the light of the
circumstances under which it was made, not misleading, or if it is
necessary to supplement or amend the Prospectus to comply with law, the
Company will forthwith prepare and duly file with the Commission an
appropriate supplement or amendment thereto, and will deliver to each
Underwriter, without charge, such number of copies of such supplement or
amendment to the Prospectus as such Underwriter may reasonably request. The
Company shall not file any document under the Exchange Act before the
termination of the offering of the Securities by the Underwriters if such
document would be deemed to be incorporated by reference into the
Prospectus which is not approved by the Underwriters after reasonable
notice thereof.
(f) Prior to any public offering of the Securities the Company
will cooperate with the Underwriters and counsel to the Underwriters in
connection with the registration or qualification of the Securities for
offer and sale under the securities or blue sky laws of such jurisdictions
as the Underwriters may request including, without limitation,
jurisdictions outside of the United States; provided, that in no event
shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which
would subject it to general service of process in any jurisdiction where it
is not now so subject.
(g) During the period of five years commencing on the date
hereof, the Company will, upon request for such item by an Underwriter,
furnish to such Underwriter such
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financial statements and other periodic and special reports as the Company
may from time to time distribute generally to the holders of any class of
its capital stock, and will, upon request for such item by such
Underwriter, furnish to such Underwriter a copy of each annual or other
report it shall be required to file with the Commission.
(h) The Company will make generally available to holders of its
securities as soon as may be practicable but in no event later than the
last day of the fifteenth full calendar month following the end of the
Company's current fiscal quarter, an earnings statement (which need not be
audited but shall be in reasonable detail) for a period of 12 months
beginning after the date upon which the Prospectus Supplement is filed
pursuant to Rule 424 under the Act, and satisfying the provisions of
Section 11(a) of the Act (including Rule 158 of the Rules and Regulations).
(i) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, the Company will
pay, or reimburse if paid by the Underwriters, all fees, costs and expenses
incident to the performance of the obligations of the Company under this
Agreement, including but not limited to fees, costs and expenses of or
relating to (i) the preparation, printing and filing of the Registration
Statement and exhibits to it, the Prospectus and any amendment or
supplement to the Registration Statement or the Prospectus, (ii) the
preparation and delivery of notes representing the Securities, (iii) the
printing of this Agreement and any Dealer Agreements, (iv) furnishing
(including costs of shipping and mailing) 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) filings required to
be made by or on behalf of the Company or the Underwriters, including
without limitation filings to be made by the Underwriters with the NASD,
and the fees and disbursements and other charges (other than counsel for
the Underwriters) in connection therewith and filings to be made by the
Company with the Commission, and the fees, disbursements and other charges
of counsel for the Company in connection therewith, (vi) the registration
or qualification of the Securities for offer and sale under the securities
or blue sky laws of such jurisdictions designated pursuant to Section 4(f),
including the fees, disbursements and other reasonable charges of counsel
to the Underwriters in connection therewith, and the preparation and
printing of preliminary, supplemental and final blue sky memoranda, (vii)
counsel to the Company and any surveyors, engineers, appraisers,
photographers, accountants and other professionals engaged by or on behalf
of the Company, (viii) the Trustee, (ix) preparation of slides, overheads
and other presentation material to be used in any "road show" or other
presentation to potential investors and the hotel, travel and other
expenses of the Company's employees in connection with any such "road show"
or presentation, and (x) Xxxxx'x Investors Service, Inc. ("Moody's") and
Standard and Poor's Rating Services ("S&P" and, together with Moody's, the
"Rating Agencies") in connection with the rating of the Securities at the
request of the Company; provided, however, that with respect to any fees,
disbursements and other charges of counsel for the Underwriters in
connection with the registration and qualification of the Securities under
blue sky laws and the preparation of blue sky memorandum, the Company shall
not be responsible for counsel fees, disbursements and other charges in
excess of $15,000. The filing fee paid to the NASD shall not be considered
to be "fees, disbursements or other charges" for the purposes of this
Section 4(i) and shall be paid by the Company.
(j) If this Agreement shall be terminated by the Company
pursuant to any of the provisions hereof (otherwise than pursuant to
Section 8 hereof) or if for any reason the Company
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shall be unable to perform its obligations hereunder, the Company will
reimburse the Underwriters for all out-of-pocket expenses (including the
fees, disbursements and other charges of counsel to the Underwriters)
reasonably incurred by it in connection herewith.
(k) The Company will not at any time, directly or indirectly,
take any action intended, or which might reasonably be expected, to cause
or result in, or which will constitute, stabilization of the price of the
Securities to facilitate the sale or resale of any of the Securities.
(l) The Company will apply the net proceeds from the offering
and sale of the Securities to be sold by the Company in the manner set
forth in the Prospectus under "Use of Proceeds."
(m) Unless the Board of Trustees of the REIT determines in its
reasonable business judgment that continued qualification as a "real estate
investment trust" under the Code is not in the Company's best interest, the
REIT will not terminate its election to be taxed as a "real estate
investment trust" under the Code, and the Company will use its best efforts
to, and will continue to meet the requirements to, so qualify as a "real
estate investment trust."
(n) The Company will take all commercially reasonable action
necessary to enable the Rating Agencies to provide their respective credit
ratings of the Company, the Operating Partnership or the Securities, as the
case may be.
5. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. In addition to
the execution and delivery of the Price Determination Agreement, the obligations
of the Underwriters hereunder are subject to the following conditions:
(a) The Prospectus shall have been filed as required by Section
3(a) and (i) no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
be pending or threatened by the Commission, (ii) no order suspending the
effectiveness of the Registration Statement or the qualification or
registration of the Securities under the securities or blue sky laws of any
jurisdiction shall be in effect and no proceeding for such purpose shall be
pending before or threatened or contemplated by the Commission or the
authorities of any such jurisdiction, (iii) any request for additional
information on the part of the staff of the Commission or any such
authorities shall have been complied with to the satisfaction of the staff
of the Commission or such authorities and (iv) after the date hereof no
amendment or supplement to the Registration Statement or the Prospectus
shall have been filed unless a copy thereof was first submitted to the
Underwriters and the Underwriters did not object thereto in good faith.
(b) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, (i) there shall not have
been a material adverse change in the general affairs, business, business
prospects, properties, management, condition (financial or otherwise) or
results of operations of Operating Partnership and its 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 (ii) neither the Company nor
any of its subsidiaries shall have 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
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or decree, which is not set forth in the Registration Statement and the
Prospectus, if in the judgment of the Underwriters any such development
makes it impracticable or inadvisable to consummate the sale and delivery
of the Securities by the Underwriters and at the public offering price.
(c) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, there shall have been no
litigation or other proceeding instituted against the Company or any of its
subsidiaries or any of their respective officers or directors or trustees,
as the case may be, in their capacities as such, before or by any Federal,
state or local court, commission, regulatory body, administrative agency or
other governmental body, domestic or foreign, in which litigation or
proceeding it is reasonably probable that an unfavorable ruling, decision
or finding would have a Material Adverse Effect.
(d) Each of the representations and warranties of the REIT and
the Operating Partnership contained herein shall be true and correct in all
material respects at the Closing Date, as if made at the Closing Date, and
all covenants and agreements contained herein to be performed on the part
of the Company and all conditions contained herein to be fulfilled or
complied with by the Company at or prior to the Closing Date, shall have
been duly performed, fulfilled or complied with.
(e) Subsequent to the execution and delivery of this
Underwriting Agreement and prior to the Closing Date, there shall not have
occurred any downgrading in the rating accorded the Securities or any other
debt securities of the Company by any Rating Agency nor shall any notice
have been given to the Company of (i) any intended or potential downgrading
by any Rating Agency in such securities, or (ii) any review or possible
change by any Rating Agency that does not indicate a stable, positive or
improving rating accorded such securities.
(f) The Underwriters shall have received one or more opinions,
dated the Closing Date and satisfactory in form and substance to the
Underwriters' counsel, from Xxxxxxx, Procter & Xxxx LLP, counsel to the
Company, (i) to the effect set forth in EXHIBIT B and (ii) concerning the
tax matters set forth below:
(i) Commencing with the Company's first taxable year ended
December 31, 1994, the Company has been organized in conformity with
the requirements for qualification as a REIT under the Code, and the
Company's method of operation, as described in the Prospectus and in
company certificates delivered to such counsel, will enable it to
continue to meet the requirements for qualification and taxation as a
REIT under the Code; and
(ii) Subject to a discussion of the Taxpayer Relief Act of
1997, which may be included in such opinion, the statements in the
Prospectus Supplement and the Prospectus under the captions "Certain
Federal Income Tax Consequences" and "Federal Income Tax
Considerations," to the extent such information constitutes matters of
law, summaries of legal matters, or legal conclusions, have been
reviewed by such counsel and are accurate in all material respects as
of the date of such opinion.
(g) The Underwriters shall have received an opinion, dated the
Closing Date, from O'Melveny & Xxxxx LLP, Underwriters' counsel, with
respect to the Registration Statement,
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the Prospectus and this Agreement, which opinion shall be satisfactory in
all respects to the Underwriters.
(h) Concurrently with the execution and delivery of this
Agreement, the Accountants shall have furnished to the Underwriters a
letter, dated the date of its delivery, addressed to the Underwriters and
in form and substance satisfactory to the Underwriters, confirming that
they are independent accountants with respect to the Company as required by
the Act and the Rules and Regulations and with respect to the financial and
other statistical and numerical information contained in the Registration
Statement or incorporated by reference therein. At the Closing Date, the
Accountants shall have furnished to the Underwriters a letter, dated the
date of its delivery, which shall confirm, on the basis of a review in
accordance with the procedures set forth in the letter from the
Accountants, that nothing has come to their attention during the period
from the date of the letter referred to in the prior sentence to a date
(specified in the letter) not more than three days prior to the Closing
Date which would require any change in their letter dated the date hereof
if it were required to be dated and delivered at the Closing Date.
(i) At the Closing Date, there shall be furnished to the
Underwriters an accurate certificate, dated the date of its delivery,
signed by each of the Chief Executive Officer and the Chief Financial
Officer of each of (a) Gables GP on behalf of the Operating Partnership and
(b) the REIT, in form and substance satisfactory to the Underwriters, to
the effect that:
(i) The Prospectus has been filed as required by Section
3(a) and no stop order suspending the effectiveness of the Registration
Statement under the Act or the blue sky laws of any jurisdiction has
been issued and, to the best of their knowledge, information and
belief, no proceeding for such purpose is pending before or threatened
or contemplated by the Commission or the authorities of any such
jurisdiction.
(ii) Any request for additional information on the part
of the staff of the Commission or any such authorities has been
complied with to the satisfaction of the staff of the Commission or
such authorities.
(iii) Each signer of such certificate has carefully
examined the Registration Statement and the Prospectus (including any
documents filed under the Exchange Act and deemed to be incorporated by
reference into the Prospectus) and (A) believes that as of the date of
such certificate, such documents are true and correct in all material
respects and do not omit to state a material fact required to be stated
therein or necessary in order to make the statements therein not untrue
or misleading and (B) does not know of any event that has occurred as a
result of which it is necessary to amend or supplement the Prospectus
in order to make the statements therein not untrue or misleading in any
material respect and there has been no document required to be filed
under the Exchange Act and the Exchange Act Rules and Regulations that
upon such filing would be deemed to be incorporated by reference into
the Prospectus that has not been so filed.
(iv) Each of the representations and warranties of the
Company contained in this Agreement were, when originally made, and
are, at the time such certificate is delivered, true and correct in all
material respects.
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(v) Each of the covenants required to be performed by
the Company herein on or prior to the delivery of such certificate has
been duly, timely and fully performed and each condition herein
required to be complied with by the Company on or prior to the date of
such certificate has been duly, timely and fully complied with.
(vi) Since the execution and delivery of the Underwriting
Agreement and prior to the Closing Date, there has not occurred any
downgrading in the rating accorded the Securities or any other debt
securities of the Company by any Rating Agency nor has any notice been
given to the Company of (A) any intended or potential downgrading by
any Rating Agency in such securities, or (B) any review or possible
change by any Rating Agency that does not indicate a stable, positive
or improving rating accorded such securities.
(j) The Securities shall be qualified for sale in such states as
the Underwriters may reasonably request, each such qualification shall be
in effect and not subject to any stop order or other proceeding on the
Closing Date.
(k) The Company shall have furnished to the Underwriters such
certificates, including, without limitation, one or more certificates of
the Secretary of the REIT and the Secretary of Gables GP on behalf of the
Operating Partnership, in addition to those otherwise specifically
mentioned herein, as the Underwriters may have reasonably requested as to
the accuracy and completeness at the Closing Date of any statement in the
Registration Statement or the Prospectus or any documents filed under the
Exchange Act and deemed to be incorporated by reference into the
Prospectus, as to the accuracy at the Closing Date of the representations
and warranties of the Company herein as to the performance by the Company
of its obligations hereunder or as to the fulfillment of the conditions
concurrent and precedent to the obligations hereunder of the Underwriters.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) The Operating Partnership and the REIT will indemnify and
hold each Underwriter, its directors, officers, employees and agents and
each person, if any, who controls it within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act harmless 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 any indemnified party and any third
party, or otherwise, or any claim asserted), as and when incurred, to which
any 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, 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 based on written information
furnished by or on behalf of the Company filed in any jurisdiction in order
to qualify the Securities under the securities or blue sky laws thereof or
filed with the Commission, (ii) the omission or alleged omission to state
in such document a material fact required
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to be stated in it or necessary to make the statements in it, in the light
of the circumstances under which they were made, not misleading or (iii)
any act or failure to act or any alleged act or failure to act by any
Underwriter 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, expense 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, expense or
action resulted directly from any such acts or failures to act undertaken
or omitted to be taken by such Underwriter through its gross negligence or
willful misconduct); provided, that the Company will not be liable to the
extent that such loss, claim, damage, liability, expense or action arises
from the sale of the Securities in the public offering to any person by any
Underwriter 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 Underwriter furnished in writing to the Company
by such Underwriter expressly for inclusion in the Registration Statement,
any preliminary prospectus or the Prospectus. This indemnity agreement will
be in addition to any liability that the Operating Partnership or the REIT
might otherwise have.
(b) Each Underwriter will indemnify and hold harmless the
Operating Partnership, the REIT, each person, if any, who controls the
Operating Partnership or the REIT within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, each trustee of the REIT and each
officer of the REIT or the Operating Partnership who signs the Registration
Statement to the same extent as the foregoing indemnity from the Operating
Partnership and the REIT to each Underwriter, but only insofar as losses,
claims, damages, liabilities, expenses or actions arise out of or are based
on any untrue statement or omission or alleged untrue statement or omission
made in reliance on and in conformity with information relating to any
Underwriter furnished in writing to the Company by such Underwriter
expressly for use in the Registration Statement or the Prospectus. This
indemnity will be in addition to any liability that each Underwriter 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.
(c) Any party that proposes to assert the right to be
indemnified under this Section 6 will, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim
is to be made against an indemnifying party or parties under this Section
6, notify each such indemnifying party of the commencement of such action,
enclosing a copy of all papers served, but the omission so to notify such
indemnifying party will not relieve it from any liability that it may have
to any indemnified party under the foregoing provisions of this Section 6
unless, and only to the extent that, such omission results in the
forfeiture of substantive rights or defenses by the indemnifying party. 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 reasonably 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
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in any such action, but the fees, expenses and other charges of such
counsel will be at the expense of such indemnified party unless (i) the
employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (ii) 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, (iii) 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 (iv) the
indemnifying party has not in fact employed counsel to assume the defense
of such action within a reasonable time after receiving notice of the
commencement of the action, in each of which cases the reasonable fees,
disbursements and other charges of counsel will be at the expense of the
indemnifying party or parties. It is understood that the indemnifying party
or parties shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one additional firm admitted
to practice in such jurisdiction at any one time for all such indemnified
party or parties. All such fees, disbursements and other charges will be
reimbursed by the indemnifying party promptly as they are incurred. An
indemnifying party will not be liable for any settlement of any action or
claim effected without its written consent (which consent will not be
unreasonably withheld); provided, however, no indemnifying party shall,
without the prior written consent of each indemnified party, settle or
compromise or consent to the entry of any judgment in any pending or
threatened claim, action or proceeding relating to the matters contemplated
by this Section 6 (whether or not any indemnified party is a party
thereto), unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
or that may arise out of such claim, action or proceeding.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 6 is applicable in accordance with its terms but
for any reason is held to be unavailable from the Company or the
Underwriter, the Company and the Underwriters will contribute to the total
losses, claims, liabilities, expenses and damages (including any
investigative, legal and other expenses reasonably incurred in connection
with, and any amount paid in settlement of, any action, suit or proceeding
or any claim asserted, 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 trustees of the Company, who also
may be liable for contribution) to which the Company and any one or more of
the Underwriters may be subject in such proportion as shall be appropriate
to reflect the relative benefits received by the Company on the one hand
and the Underwriters on the other. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover page of the Prospectus.
If, but only if, the allocation provided by the foregoing sentence is not
permitted by applicable law, the allocation of contribution shall be made
in such proportion as is appropriate to reflect not only the relative
benefits referred to in the foregoing sentence but also the relative fault
of the Company, on the one hand, and the Underwriters, on the other, with
respect to the statements or omissions which resulted in such loss, claim,
liability, expense or damage, or action in respect thereof, as well as any
other relevant equitable considerations with respect to such offering. Such
relative fault shall be determined by reference to whether the untrue or
alleged untrue statement of a material fact or
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omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters, the intent of the
parties and their relative knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section 6(d) were to be determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purposes) or
by any other method of allocation which does not take into account the
equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, liability, expense or
damage, or action in respect thereof, referred to above in this Section
6(d) shall be deemed to include, for purpose of this Section 6(d), any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6(d), no Underwriter shall
be required to contribute any amount in excess of the underwriting
discounts and commissions received by it 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. The Underwriters' obligations to
contribute as provided in this Section 6(d) are several in proportion to
their respective underwriting obligations and not joint. For purposes of
this Section 6(d), any person who controls a party to this Agreement within
the meaning of the Act will have the same rights to contribution as that
party, and each officer of the Company who signed the Registration
Statement will have the same rights to contribution as the Company, subject
in each case to the provisions hereof. Any party entitled to contribution,
promptly after receipt of notice of commencement of any action against such
party in respect of which a claim for contribution may be made under this
Section 6(d), will notify any such party or parties from whom contribution
may be sought, but the omission so to notify will not relieve the party or
parties from whom contribution may be sought from any other obligation it
or they may have under this Section 6(d). No party will be liable for
contribution with respect to any action or claim settled without its
written consent (which consent will not be unreasonably withheld).
(e) The indemnity and contribution agreements contained in this
Section 6 and the representations and warranties of the Company contained
in this 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 Agreement.
7. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties, agreements and covenants of the Company herein or
in certificates delivered pursuant hereto, and the agreements of the
Underwriters contained in Section 6 hereof, shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of any
Underwriter or any controlling persons, or the Company or any of its officers,
trustees, or any controlling persons, and shall survive (i) termination of this
Agreement and (ii) delivery of and payment for the Securities hereunder.
8. SUBSTITUTION OF UNDERWRITERS.
(a) If any Underwriter or Underwriters shall fail to take up and
pay for the aggregate principal amount of Securities agreed by such
Underwriter or Underwriters to be purchased hereunder, upon tender of such
Securities in accordance with the terms hereof, and the aggregate principal
amount of Securities not purchased does not aggregate more than 10% of the
total aggregate principal amount of Securities that the Underwriters are
obligated to purchase hereunder at the Closing Date, the remaining
Underwriters shall be obligated to take up and pay for
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(in proportion to their respective underwriting obligations hereunder as
set forth in SCHEDULE 1 hereto except as may otherwise be determined by
you) the Securities that the withdrawing or defaulting Underwriter or
Underwriters agreed but failed to purchase.
(b) If any Underwriter or Underwriters shall fail to take up and
pay for the aggregate principal amount of Securities agreed by such
Underwriter or Underwriters to be purchased hereunder, upon tender of such
Securities in accordance with the terms hereof, and the principal amount of
Securities not purchased aggregates more than 10% of the total principal
amount of Securities that the Underwriters are obligated to purchase
hereunder at the Closing Date, and arrangements satisfactory to you and the
Company for the purchase of such Securities by other persons are not made
within 36 hours thereafter, this Agreement shall terminate. In the event of
any such termination the Company shall not be under any liability to any
Underwriter with respect to Securities not purchased by reason of such
termination (except to the extent provided in Section 4(j), regarding
payment of expenses, and Section 6, regarding indemnification and
contribution, hereof) nor shall any Underwriter (other than an Underwriter
who shall have failed, otherwise than for some reason permitted under this
Agreement, to purchase the amount of Securities agreed by such Underwriter
to be purchased hereunder) be under any liability to the Company with
respect to such Securities (except to the extent provided in Section 6
hereof).
9. TERMINATION. The obligations of the Underwriters under this
Agreement may be terminated at any time on or prior to the Closing Date, by
notice to the Company from the Underwriters, without liability on the part of
the Underwriters to the Company, if, prior to delivery and payment for the
Securities, in the sole judgment of the Underwriters, (i) trading in any of the
equity securities of the Company shall have been suspended by the Commission, by
an exchange that lists such equity securities or by the National Association of
Securities Dealers Automated Quotation National Market System, (ii) trading in
securities generally on the New York Stock Exchange shall have been suspended or
limited or minimum or maximum prices shall have been generally established on
such exchange, or additional material governmental restrictions, not in force on
the date of this Agreement, shall have been imposed upon trading in securities
generally by such exchange or by order of the Commission or any court or other
governmental authority, (iii) a general banking moratorium shall have been
declared by either Federal or New York State authorities or (iv) any material
adverse change in the financial or securities markets in the United States or in
political, financial or economic conditions in the United States or any outbreak
or material escalation of hostilities or declaration by the United States of a
national emergency or war or other calamity or crisis shall have occurred the
effect of any of which is such as to make it impracticable or inadvisable to
market the Securities on the terms and in the manner contemplated by the
Prospectus.
10. NOTICES. Notice given pursuant to any of the provisions of this
Agreement shall be in writing and, unless otherwise specified, shall be mailed
or delivered (a) if to the Company, at the office of the Company, 0000 Xxxxx
Xxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxx, or (b) if to
the Underwriters, to the offices of PaineWebber Incorporated, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Real Estate Department.
Any such notice shall be effective only upon receipt. Any notice under Section
10 hereof may be made by telex, facsimile or telephone, but if so made shall be
subsequently confirmed in writing.
11. PARTIES. This Agreement has been and is made solely for the
benefit of the Underwriters, the Operating Partnership and the REIT and of the
controlling persons, directors, trustees, and officers referred to in Section 6,
and their respective successors and assigns, and no other person shall
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acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns" as used in this Agreement shall not include a
purchaser, as such purchaser, of Securities from the Underwriters.
12. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
13. COUNTERPARTS. This Agreement may be signed in two or more
counterparts with the same effect as if the signatures thereto and hereto were
upon the same instrument.
14. SEVERABILITY. In case any provision in this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
15. WAIVER OF TRIAL BY JURY. The Operating Partnership, the REIT and
each of the Underwriters each hereby irrevocably waive any right they may have
to a trial by jury in respect of any claim based upon or arising out of this
Agreement or the transactions contemplated hereby.
16. MANAGING UNDERWRITER. Any action required or permitted to be taken
by the Underwriters under this Agreement may be taken by them jointly or by
PaineWebber Incorporated.
[Signature page follows.]
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Please confirm that the foregoing correctly sets forth the agreement
among the REIT, the Operating Partnership and the Underwriters.
Very truly yours,
GABLES REALTY LIMITED PARTNERSHIP
By: GABLES GP, INC.,
General Partner
By: /s/ Xxxxxx X. Xxxxx, Xx.
-----------------------------
Xxxxxx X. Xxxxx, Xx.,
Chief Financial Officer
GABLES RESIDENTIAL TRUST
By: /s/ Xxxxxx X. Xxxxx, Xx.
-----------------------------
Xxxxxx X. Xxxxx, Xx.,
Chief Financial Officer
Confirmed as of the date first above mentioned:
PAINEWEBBER INCORPORATED
CHASE SECURITIES INC.
X.X. XXXXXX SECURITIES INC.
By: PAINEWEBBER INCORPORATED
By: /s/ Xxxxxxxxx X. Xxxxx, Xx.
---------------------------
Xxxxxxxxx X. Xxxxx, Xx.
Managing Director
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SCHEDULE 1
UNDERWRITING COMMITMENTS
Aggregate Principal
Underwriter Amount of
Securities to be
Purchased
======================================================== ===================
PaineWebber Incorporated.............................. $ 25,000,000
Chase Securities Inc.................................. 12,500,000
X. X. Xxxxxx Securities Inc........................... 12,500,000
===================
Total........................................ $ 50,000,000
===================
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SCHEDULE 2
DESCRIPTION OF SECURITIES AND
PRICING INFORMATION
TITLE OF SECURITIES: 6.55% Senior Notes due 2000
AGGREGATE PRINCIPAL AMOUNT: $50,000,000
MATURITY DATE: October 1, 2000
INTEREST RATE: 6.55% per annum from October 1, 1998
COUPON PAYMENT DATES: April 1 and October 1
PRICE TO PUBLIC: 99.925% plus accrued interest from October 1,
1998 to the Delivery Date
UNDERWRITING DISCOUNT: 0.300%
NET PRICE TO OPERATING
PARTNERSHIP: 99.625% plus accrued interest from October 1,
1998 to the Delivery Date
ACCRUED INTEREST FROM
OCTOBER 1, 1998 TO THE
DELIVERY DATE: $36,388.89
GROSS PROCEEDS TO BE PAID
TO THE OPERATING PARTNERSHIP: $49,848,888.89
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DELIVERY DATE AND TIME: Monday, October 5, 1998, 10:00 a.m. (New York
City time)
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SCHEDULE 3
SUBSIDIARIES
Gables Realty Limited Partnership, a Delaware limited partnership
Gables-Tennessee Properties, a Tennessee general partnership
Gables GP, Inc., a Texas corporation
Gables East Construction, Inc., a Georgia corporation
East Apartment Management, Inc., a Georgia corporation
Gables Central Construction, Inc., a Texas corporation
Central Apartment Management, Inc., a Texas corporation
Pin Oak Green, a Texas general partnership
Pin Oak Park Apartments, a Texas general partnership
Candlewood Gen Par, Inc., a Georgia corporation
Candlewood-Indian Creek Limited Partnership, a Georgia limited partnership
GRT Villas Gen Par, Inc. (F.K.A. Candle Creek, Inc.), a Georgia corporation
GRT Villas Limited Partnership, a Texas limited partnership
Boca Place Associates, Ltd., a Florida limited partnership
Boynton Beach I Limited Partnership, a Florida limited partnership
CM Bay Associates, a Florida general partnership
Hampton Lakes Associates, a Florida general partnership
Hampton Lakes II Associates, a Florida general partnership
Hampton Place Joint Venture, a Florida general partnership
Kings Colony Associates, Ltd., a Florida limited partnership
Xxxxxx I Limited Partnership, a Florida limited partnership
San Xxxxxxx Joint Venture, a Florida general partnership
San Remo Limited Partnership, a Florida limited partnership
TCRDAD Vinings at Boynton Beach II Limited Partnership, a Florida limited
partnership
TCRDAD Wellington Limited Partnership, a Florida limited partnership
Town Colony Associates, a Florida general partnership
Town Colony II Associates, a Florida general partnership
Gables Lions Head Limited Partnership, a Texas limited partnership
Gables Rivercrest II Limited Partnership, a Texas limited partnership
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EXHIBIT A
INFORMATION IN REGISTRATION STATEMENT AND PROSPECTUS
FURNISHED BY THE UNDERWRITERS
The following information appearing in the Prospectus has been
furnished by the Underwriters expressly for use in the preparation of the
Prospectus:
1. The names of the Underwriters.
2. The stabilization legend on the inside front cover page of the
Prospectus Supplement.
3. The following information contained in the Prospectus Supplement
under the heading "Underwriting":
a. The allocation of securities between the Underwriters in the
table following the first paragraph; and
b. The information in the second paragraph.
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EXHIBIT B
OPINION OF COMPANY COUNSEL
1. The Registration Statement has been declared effective under the
1933 Act. The Prospectus has been filed with the Commission pursuant to Rule 424
under the 1933 Act. To the best of our knowledge (based solely on an oral
representation of a member of the Commission's staff), no stop order suspending
the effectiveness of the Registration Statement has been issued under the 1933
Act and no proceeding for that purpose has been instituted or threatened by the
Commission.
2. Each of (a) the Registration Statement, when it became effective,
(b) any amendment or supplement thereto, on the date of filing and effectiveness
thereof with the Commission and (c) the Prospectus and any supplement thereto,
as of the date thereof, complied as to form in all material respects with the
requirements of the 1933 Act and the rules and regulations thereunder (other
than (i) the financial statements and schedules and other financial and
statistical information and data included therein or omitted therefrom, and (ii)
any documents incorporated by reference into the Registration Statement, as to
which we express no opinion) it being understood that, in passing upon
compliance as to the form of the Registration Statement, we assume that the
statements made therein are correct and complete.
3. The descriptions in the Registration Statement and the Prospectus
(other than the documents incorporated by reference and other than with respect
to the matters in the Prospectus under the captions "Federal Income Tax
Considerations," for which reference is made to our separate opinion delivered
to you this day) of statutes are accurate in all material respects and fairly
present the information required to be disclosed therein. We do 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 to be filed as exhibits to the Registration Statement that are not
so described or filed.
4. Neither the REIT nor the Operating Partnership (after giving
effect to the sale of the Securities) is required to be registered under the
Investment Company Act of 1940, as amended.
5. The REIT has been duly organized and is validly existing as a real
estate investment trust in good standing under the laws of the State of
Maryland. Each of the REIT and the Operating Partnership has full power and
authority to conduct its business as described in the Registration Statement and
Prospectus.
6. 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 Delaware. All of the issued and outstanding partnership interests of the
Operating Partnership have been duly authorized and are validly issued.
7. Each Subsidiary has been duly organized and, except for
Subsidiaries which are general partnerships, is validly existing as a limited
partnership or corporation, as the case may be, in good standing under the laws
of its state of organization or formation as set forth on EXHIBIT 1 hereto.
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8. Except as set forth in EXHIBIT 2 hereto, the REIT, directly or
through Subsidiaries, is the sole record owner of all of the capital stock or
partnership interests, as the case may be, of each Subsidiary.
9. Each of the Subsidiaries has corporate or partnership power, as
the case may be, and authority to conduct its business as described in the
Prospectus.
10. Each of the Operating Partnership and the Subsidiaries,
respectively, is duly qualified or registered as a foreign corporation or
foreign partnership, as the case may be, to transact business and is in good
standing in each jurisdiction listed in EXHIBIT 1 hereto.
11. All of the outstanding shares of the Company identified in the
Prospectus have been duly authorized and are validly issued, fully paid and
nonassessable and conform to the description thereof in the Prospectus.
12. (i) The Securities have been duly authorized, executed and
delivered by the Operating Partnership and, when duly authenticated in
accordance with the terms of the Indenture and delivered to and paid
for by the Underwriters in accordance with the terms of the
Underwriting Agreement, will constitute valid and binding obligations
of the Company entitled to the benefits provided by the Indenture and
enforceable against the Operating Partnership in accordance with their
terms;
(ii) the Indenture has been duly authorized, executed and
delivered by the Operating Partnership and constitutes a valid and
binding agreement of the Operating Partnership enforceable against the
Operating Partnership in accordance with its terms;
(iii) the Indenture has been duly qualified under the Trust
Indenture Act;
(iv) the Indenture and the Securities conform in all material
respects to the descriptions thereof in the Registration Statement and
the Prospectus.
13. The REIT and the Operating Partnership have full power and
authority to enter into the Underwriting Agreement, and the Underwriting
Agreement has been duly authorized, executed and delivered by each of the REIT
and the Operating Partnership. To our knowledge, the issuance and sale of the
Securities to the Underwriters on the terms contemplated in the Underwriting
Agreement will not result in the creation or imposition of any lien, charge or
encumbrance upon any of the assets of the REIT, the Operating Partnership, or
any of the Subsidiaries, pursuant to the terms or provisions of, or result in a
breach or violation of any of the terms or provisions of, or constitute a
default or result in the acceleration of any obligation under, (i) the
Declaration of Trust or Bylaws of the REIT, (ii) the articles or certificate of
incorporation, partnership agreement or bylaws of any of the Subsidiaries, (iii)
the limited partnership agreement of the Operating Partnership, (iv) any
agreement or instrument filed as an exhibit to the Registration Statement and
incorporated therein by reference to which the REIT, the Operating Partnership
or any of the Subsidiaries is a party or by or pursuant to which any of them or
their respective properties is bound, affected or financed, or (v) any statute,
rule or regulation or judgment, ruling, decree or order, known to us, of any
court or other governmental agency or body applicable to the business or
properties of the REIT, the Operating Partnership or any of the Subsidiaries
(except that (i) we express no opinion as to the securities or blue sky laws of
any jurisdiction other than the United States and (ii) insofar as compliance
with the federal securities laws of the United States is concerned, our opinions
are limited to numbered paragraphs (1), (2), (3), (4) and (14) and (iii) our
opinion in this paragraph (13) should not be interpreted to address the
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disclosure requirements of the securities laws, for which we make reference to
our statements following numbered paragraph (14) below), where such violation or
default, individually or in the aggregate, might have a material adverse effect
on the business, properties, business prospects, condition (financial or
otherwise) or results of operations of the REIT, the Operating Partnership and
the Subsidiaries taken as a whole.
14. To our knowledge, no consent, approval, authorization or order of,
or filing with, any court or governmental agency or body is required in
connection with the issuance or sale of the Securities by the Company, except
(i) such as have been obtained under the 1933 Act or the Securities Exchange Act
of 1934, as amended, or (ii) such as may be required under state securities laws
or the bylaws or rules of the NASD in connection with the purchase and
distribution of the Securities by the Underwriters.
The limitations inherent in the independent verification of
factual matters and the character of determinations involved in the registration
process are such that we are not passing upon and do not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus and we make no
representation that we have independently verified the accuracy, completeness or
fairness of such statements. Without limiting the foregoing, we assume no
responsibility for, and have not independently verified, the accuracy,
completeness or fairness of the financial statements or notes thereto, financial
schedules and other financial and statistical data incorporated by reference
into the Registration Statement, and we have not examined the accounting,
financial or statistical records from which such statements and notes, schedules
and data are derived. However, in the course of our acting as counsel to the
Company in connection with the preparation of the Registration Statement and the
Prospectus and the public offering of the Securities we participated in
conferences and telephone conversations with representatives of the Company,
Xxxxxx Xxxxxxxx LLP, accountants for the Company, your representatives and
representatives of O'Melveny & Xxxxx LLP, your counsel, during which conferences
and conversations the contents of the Registration Statement and the Prospectus
and related matters were discussed. In addition, we reviewed certain documents
made available to us by the Company or otherwise in our possession.
Based on our participation in the above-mentioned conferences and
conversations, our review of the documents described above and our understanding
of applicable law, we advise you that:
(a) No facts have come to our attention which cause us to believe that
the Registration Statement (excluding the financial statements and
notes thereto, financial schedules and other financial or
statistical information and data included or incorporated by
reference therein or omitted therefrom and the Trustee's Statement
of Eligibility and Qualification on Form T-1 (the "T-1")
incorporated by reference therein, as to which we make no
statement), at the time it became effective, 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; and
(b) No facts have come to our attention which cause us to believe that
the Prospectus (excluding the financial statements and notes
thereto, financial schedules and other financial or statistical
information and data included or incorporated by reference therein
or omitted therefrom and the T-1, as to which we make no
statement), as of its date or the date hereof, contained or
contains an untrue statement of a material fact
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or omitted or omits to state a material fact necessary in order to
make the statements therein, in light of the circumstances under
which they were made, not misleading.
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