Exhibit 1.1
EXECUTION COPY
THE ▇▇▇▇▇ COMPANY
DEBT SECURITIES
UNDERWRITING AGREEMENT
March 10, 2004
To the Representatives of the
several Underwriters named in the
respective Pricing Agreements
hereinafter described.
Ladies and Gentlemen:
From time to time The ▇▇▇▇▇ Company, a Maryland corporation (the
"Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms
and conditions stated herein and therein, to issue and sell to the firms
named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and
the securities specified therein) certain of its debt securities (the
"Securities") specified in Schedule II to such Pricing Agreement (with
respect to such Pricing Agreement, the "Designated Securities").
The terms and conditions of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto
and in or pursuant to the Indenture, dated as of February 24, 1995 (the
"Indenture"), between the Company and ▇.▇. ▇▇▇▇▇▇ Trust Company, National
Association (as successor to Bank One, National Association, formerly known
as the First National Bank of Chicago), as trustee (the "Trustee"),
including in the provisions of the Designated Securities.
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Securities, for whom the firms designated
as representatives of the Underwriters of such Securities in the Pricing
Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to an Underwriter or
Underwriters who act without any firm being designated as its or their
representatives. This Underwriting Agreement (the "Agreement") shall not be
construed as an obligation of the Company to sell any of the Securities or
as an obligation of any of the Underwriters to purchase the Securities. The
obligation of the Company to issue and sell any of the Securities and the
obligation of any of the Underwriters to purchase any of the Securities
shall be evidenced by the Pricing Agreement with respect to the Designated
Securities specified therein. Each Pricing Agreement shall specify the
aggregate principal amount of such Designated Securities, the initial
public offering price of such Designated Securities, the purchase price to
the Underwriters of such Designated Securities, the names of the
Underwriters of such Designated Securities, the names of the
Representatives of such Underwriters and the principal amount of such
Designated Securities to be purchased by each Underwriter and shall set
forth the date, time and manner of delivery of such Designated Securities
and payment therefor. The Pricing Agreement shall also specify (to the
extent not set forth in the Indenture and registration statement and
prospectus with respect thereto) the terms and conditions of such
Designated Securities. A Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of facsimile communications or any other rapid transmission device
designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing
Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-67137) (the
"Initial Registration Statement") in respect of the Securities has been (i)
prepared by the Company in conformity with the requirements of the
Securities Act of 1933, as amended (the "Act"), and the rules and
regulations of the Securities and Exchange Commission (the "Commission")
thereunder, (ii) filed with the Commission under the Act and (iii) declared
effective by the Commission; the registration statement, as amended at the
date of this Agreement, meets the requirements set forth in Rule
415(a)(1)(x) under the Act and complies in all material respects with such
Rule; and no stop order suspending the effectiveness of the registration
statement or any post-effective amendment thereto, if any, has been issued,
and no proceeding for that purpose has been initiated or threatened by the
Commission; the Company proposes to file with the Commission pursuant to
Rule 424(b) under the Act ("Rule 424(b)") a supplement to the form of
prospectus included in the registration statement relating to the offering
of the Securities and has previously advised you of all information
(financial and other) with respect to the Company to be set forth therein.
The term "Registration Statement" means the Initial Registration Statement,
as amended as of the date of the Company's Annual Report on Form 10-K for
the year ended December 31, 2003 (the "2003 Form 10-K"), as amended at the
date of this Agreement and as amended from time to time hereafter,
including the exhibits thereto, and the 2003 Form 10-K and all other
documents incorporated or deemed to be incorporated therein by reference
pursuant to Item 12 of Form S-3 (the "Incorporated Documents"), and such
prospectus as then amended, including the Incorporated Documents, is
hereinafter referred to as the "Base Prospectus"; and such supplemented
form of prospectus, in the form in which it shall be filed with the
Commission pursuant to Rule 424(b) (including the Base Prospectus as so
supplemented), is hereinafter called the "Prospectus". If the Company has
filed an abbreviated registration statement to register additional
Securities pursuant to Rule 462(b) under the Securities Act (the "Rule 462
Registration Statement"), then any reference herein to the term
"Registration Statement" shall be deemed to include such Rule 462
Registration Statement. The Base Prospectus, as the same may be amended or
supplemented from time to time by a preliminary form of prospectus
supplement relating to the Designated Securities, as and if filed pursuant
to Rule 424(b), is hereinafter called a "Preliminary Prospectus". Any
reference herein to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the Incorporated Documents that were filed
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
or the Act, as the case may be, on or before the issue date of any
Preliminary Prospectus or the issue date of the Prospectus, as the case may
be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
filing of any Incorporated Documents under the Exchange Act or the Act, as
the case may be, after the date of the Pricing Agreement or the issue date
of the Base Prospectus, any Preliminary Prospectus or the Prospectus, as
the case may be, and deemed to be incorporated therein by reference;
(b) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, when they were filed with the Commission or
became effective, as the case may be, conformed in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder; and none of such
documents 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 any further documents so filed
and incorporated by reference in the Prospectus, when such documents are
filed with the Commission, will conform in all material respects to the
requirements of the Exchange Act and will not contain an untrue statement
of a material fact or omit to state a material fact necessary to make the
statements therein not misleading;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission
thereunder; the Registration Statement and any amendment thereto do not and
will not, as of the applicable effective date, 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 does not contain and as amended or supplemented 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,
in light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not apply to
the statement of eligibility and qualification on Form T-1 of the Trustee
under the Trust Indenture Act (the "Form T-1") or any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter of Designated
Securities through the Representatives expressly for use in the Prospectus
relating to such Securities;
(d) The Company and its subsidiaries, taken as a whole, have not
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material loss
or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus; and, since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock (other than
issuances of capital stock (i) pursuant to bonus stock awards granted in
the ordinary course of business, (ii) upon exercise of options and stock
appreciation rights and upon conversion or redemption of convertible
securities and (iii) pursuant to the terms of the Contingent Stock
Agreement, effective as of January 1, 1996, executed in connection with the
acquisition by the Company of all of the outstanding equity interests in
The ▇▇▇▇▇▇ Corporation and its affiliated partnership, ▇▇▇▇▇▇ ▇▇▇▇▇▇
Properties, Limited Partnership (the "Contingent Stock Agreement"), in each
case, except with respect to bonus stock awards granted in the ordinary
course of business, which were outstanding as of the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus), or any material and adverse change in the long-term debt of
the Company and its subsidiaries, taken as a whole (it being understood
that, absent unusual circumstances, an increase in long term debt of the
Company and its subsidiaries, taken as a whole, of less than 5% would not
be a material and adverse change to the Company and its subsidiaries, taken
as a whole), or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the, business,
properties, management, financial condition or results of operations (based
on Funds From Operations) ("Material Adverse Effect") of the Company and
its subsidiaries, taken as a whole, except as set forth or contemplated in
the Prospectus;
(e) Except as noted therein, the consolidated financial statements,
and the related notes thereto, incorporated by reference in the
Registration Statement and the Prospectus present fairly in all material
respects the consolidated financial position of the Company and its
consolidated subsidiaries as of the dates indicated and the results of
their operations and changes in their consolidated cash flows for the
periods specified; and such financial statements have been prepared in
conformity with accounting principles generally accepted in the United
States applied on a consistent basis; the supporting schedules incorporated
by reference in the Registration Statement present fairly in all material
respects the information required to be stated therein; and the pro forma
financial information, and the related notes thereto, contained or
incorporated by reference in the Registration Statement and the Prospectus
fairly present in all material respects the information contained therein
and have been prepared on a reasonable basis using reasonable assumptions
and on a basis consistent with the segment accounting principles and
policies of the Company reflected in such financial statements;
(f) The Company and its subsidiaries have, or, in those cases where
such subsidiary is a general partner in a partnership, such partnership
has, good and marketable fee simple and/or leasehold title (as the case may
be) to all real property owned by it or them (except for those lesser
estates in real property which, in the aggregate, are not material in value
to the Company and its subsidiaries), subject only to (A) those liens and
encumbrances which have been reflected generally or in the aggregate in the
financial statements of the Company as disclosed in the Prospectus or as
are described specifically, generally or in the aggregate in the
Prospectus, or (B) such liens and encumbrances (i) not required by
generally accepted accounting principles to be disclosed in the financial
statements of the Company, which (a) if all material covenants and
conditions thereof are observed or performed, will not materially interfere
with the use made or proposed to be made of such property by the Company
and its subsidiaries or (b) are reasonable and customary with regard to the
normal operation of land and improvements held for commercial purposes by
first class owners and operators of commercial real estate, or (ii) which
were incurred after the date of the latest audited financial statements
included or incorporated by reference in the Prospectus in the ordinary
course of business (including financings) and which, in the aggregate (on a
net basis), are not material to the Company and its subsidiaries, taken as
a whole. The Company and its subsidiaries have title to the personal
property owned by it or them and, subject to the continued performance of
the material covenants and conditions of liens and encumbrances thereon,
have the right to use such property without interference in the normal
course of business, except for such interference as would not have a
Material Adverse Effect on the Company and its subsidiaries, taken as a
whole;
(g) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of Maryland, with power
and authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which the failure so to
qualify and maintain good standing would have a material adverse effect on
the Company and its subsidiaries, taken as a whole; and each subsidiary of
the Company, including, without limitation, The ▇▇▇▇▇ Company LP, has been
duly incorporated or formed and is validly existing as a corporation,
limited liability company or limited partnership in good standing under the
laws of its jurisdiction of incorporation or formation except for such
failures to maintain good standing as would not have a Material Adverse
Effect on the Company and its subsidiaries, taken as a whole;
(h) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully paid
and non-assessable; and all of the issued shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable and are owned (with exceptions that are
disclosed, whether directly or through incorporation by reference, in the
Prospectus or are not material to the Company and its subsidiaries, taken
as a whole) directly or indirectly by the Company, free and clear of all
liens, encumbrances or claims (collectively, "Liens") except for (i) Liens
in respect of our existing revolving credit facility and Liens relating to
debt that have been disclosed specifically, generally or in the aggregate
in the Prospectus or incurred after the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus in the ordinary course of business (including financings), (ii)
Liens incurred in the ordinary course of business that are not materially
adverse to the operations of the Company and its subsidiaries, taken as a
whole, (iii) restrictions on the transfer or use of the capital stock of
any subsidiary under any partnership, joint venture or lease agreements to
which the Company or any of its subsidiaries is a party and (iv) Liens
relating to certain affiliates in which the Company acquired interests in
connection with the acquisition of The Woodlands, a master-planned
community in the Houston, Texas metropolitan area; and, except as described
in or expressly contemplated by the Prospectus, there are no outstanding
rights (including, without limitation, preemptive rights), warrants or
options (other than stock options that have been issued to employees and
rights to the issuance of shares of common stock of the Company held by the
former ▇▇▇▇▇▇ owners pursuant to the Contingent Stock Agreement) to
acquire, or instruments (other than the outstanding shares of Series B
Preferred Stock of the Company) convertible or exchangeable for, any shares
of capital stock or other equity interest in the Company, or any contract,
commitment, agreement, understanding or arrangement of any kind relating to
the issuance of any capital stock of the Company, any such convertible or
exchangeable securities or any such rights, warrants, or options, which
such rights, warrants, options, instruments, or contract, commitment,
agreement, understanding or arrangement may be reasonably expected to be
material to the securityholders of the Company. As used herein, the term
"capital stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a person that is not a
corporation and any and all warrants or options to purchase any of the
foregoing;
(i) The Securities have been duly authorized, and, when Designated
Securities are issued and delivered pursuant to this Agreement and the
Pricing Agreement with respect to such Designated Securities, such
Designated Securities will have been duly executed, authenticated, issued
and delivered and will constitute valid and legally binding obligations of
the Company enforceable in accordance with their terms and entitled to the
benefits of the Indenture, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; the Indenture
has been duly authorized and qualified under the Trust Indenture Act and,
at the Time of Delivery (as defined in Section 4 hereof) for such
Designated Securities, the Indenture will constitute a valid and legally
binding instrument enforceable in accordance with its terms, subject to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; and the Indenture conforms and the Designated Securities
will conform to the descriptions thereof contained in the Prospectus;
(j) Neither the Company nor any of its subsidiaries is, or with the
giving of notice or lapse of time or both, would be, in violation of or in
default under, its articles of incorporation or bylaws or equivalent
constitutive documents or any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which it or any of them or any of their
respective properties is bound, except for violations and defaults that,
individually and in the aggregate, do not have a Material Adverse Effect on
the Company and its subsidiaries, taken as a whole; the issue and sale of
the Designated Securities, the compliance by the Company with all of the
provisions of the Designated Securities, the Indenture, this Agreement and
the applicable Pricing Agreement and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
is bound or to which any of the property or assets of the Company or any of
its subsidiaries is subject except for such conflict, breach, violation or
default which does not have a Material Adverse Effect on the Company and
its subsidiaries, taken as a whole, nor will such actions result in any
violation of the provisions of the articles of incorporation or the bylaws
of the Company or any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any court or
governmental agency or body is required for the issue and sale of the
Designated Securities or the consummation by the Company of the other
transactions contemplated by this Agreement, the applicable Pricing
Agreement or the Indenture, except such as have been, or will have been
prior to the Time of Delivery, obtained under the Act or the Trust
Indenture Act and such consents, approvals, authorizations, orders,
registrations or qualifications as may be required under state securities
or Blue Sky laws in connection with the purchase and distribution of the
Designated Securities by the Underwriters;
(k) Other than as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or to which any property of the Company or any of
its subsidiaries is subject, which are likely, individually or in the
aggregate, to have a Material Adverse Effect on the Company and its
subsidiaries taken as a whole, and, to the best of the Company's knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(l) The Company is not, and after giving effect to each offering
and sale of the Securities will not be, an "investment company" or an
entity "controlled" by an "investment company", as such terms are defined
in the Investment Company Act of 1940, as amended (the "Investment Company
Act");
(m) Neither the Company nor any of its affiliates does business
with the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes;
(n) The independent certified public accountants of the Company,
who have certified certain financial statements of the Company and its
subsidiaries or other specified entities referred to in their reports, are
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder; and
(o) At all times commencing with the Company's taxable year ended
December 31, 1998, the Company has been and after giving effect to the
offering and the sale of the Designated Securities will continue to be,
organized and operated in conformity with the requirements for
qualification of the Company as a real estate investment trust ("REIT")
under the Internal Revenue Code of 1986, as amended (the "Code"), and the
proposed method of operation of the Company will enable the Company to
continue to meet the requirements for qualification and taxation as a REIT
under the Code.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the
release of such Designated Securities, the several Underwriters propose to
offer such Designated Securities for sale upon the terms and conditions set
forth in the Prospectus.
4. Designated Securities to be purchased by each Underwriter pursuant
to the Pricing Agreement relating thereto, in the form specified in such
Pricing Agreement, and in such authorized denominations and registered in
such names as the Representatives may request upon at least twenty-four
hours' prior notice to the Company, shall be delivered by or on behalf of
the Company to the Representatives for the account of such Underwriter,
against payment by such Underwriter or on its behalf of the purchase price
therefor by wire transfer in federal or other same day funds, payable to
the order of the Company in the funds specified in such Pricing Agreement,
all in the manner and at the place and time and date specified in such
Pricing Agreement or at such other place and time and date as the
Representatives and the Company may agree upon in writing, such time and
date being herein called the "Time of Delivery" for such Designated
Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus in relation to the applicable
Designated Securities in a form approved by the Representatives and to file
such Prospectus pursuant to Rule 424(b) under the Act no later than the
Commission's close of business on the second business day following the
execution and delivery of the Pricing Agreement relating to the applicable
Designated Securities or, if applicable, such earlier time as may be
required by Rule 424(b); to make no further amendment or any supplement to
the Registration Statement or Prospectus after the date of the Pricing
Agreement relating to such Securities and prior to the Time of Delivery for
such Securities which shall be disapproved by the Representatives for such
Securities promptly after reasonable notice thereof, to advise the
Representatives promptly of any such amendment or supplement after the Time
of Delivery for such Securities and furnish the Representatives with copies
thereof, to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act for so long as the delivery of a prospectus is required in connection
with the offering or sale of such Securities, and during such same period
to advise the Representatives, promptly after it receives notice thereof,
of the time when any amendment to the Registration Statement has been filed
or becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed with the Commission, of the issuance by the
Commission of any stop order or any order preventing or suspending the use
of any prospectus relating to such Securities, of the suspension of the
qualification of such Securities for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such purpose, or
of any request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information; and, in
the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to such
Securities or suspending any such qualification, to promptly use its best
efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein for as long as may be
necessary to complete the distribution of such Securities; provided,
however, that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) To furnish the Underwriters with (i) two copies of the
Registration Statement (as originally filed) and each amendment thereto,
and all exhibits and documents incorporated or deemed to be incorporated by
reference therein and (ii) copies of the Prospectus in such quantities as
the Representatives may from time to time reasonably request, and, if the
delivery of a prospectus is required at any time in connection with the
offering or sale of the Designated Securities and if at such time any event
shall have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when
such Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated or
deemed to be incorporated by reference in the Prospectus in order to comply
with the Act, the Exchange Act or the Trust Indenture Act, to notify the
Representatives and upon their request to file such document and to prepare
and furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representatives may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus, which will correct such statement or omission or effect such
compliance;
(d) During the period beginning from the date of the Pricing
Agreement for the Designated Securities and continuing to and including the
Time of Delivery for such Designated Securities, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of the Company
that mature more than one year after the Time of Delivery and that are
substantially similar to such Designated Securities, without the prior
written consent of the Representatives;
(e) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158); and
(f) To apply the net proceeds from the sale of the Designated
Securities as described in the Preliminary Prospectus and the Prospectus.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all
other expenses in connection with the preparation, printing and filing of
the Registration Statement, any Preliminary Prospectus and the Prospectus
and all other amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost
of printing and producing any Agreement among Underwriters, this Agreement,
any Pricing Agreement, the Indenture, any Blue Sky and legal investment
memoranda, closing documents (including any compilations thereof) and any
other documents so long as such documents have been approved by the Company
in connection with the offering, purchase, sale and delivery of the
Securities; (iii) all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the fees and disbursements of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Underwriters in connection with such
qualification and in connection with Blue Sky and legal investment surveys;
(iv) any fees charged by securities rating agencies for rating the
Securities; (v) any filing fees incident to, and the reasonable fees and
disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the
Underwriters in connection with, any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Securities; (vi) the cost of preparing the Securities; (vii) the reasonable
fees and expenses of any Trustee and any agent of any Trustee and any
transfer or paying agent of the Company and the reasonable fees and
disbursements of counsel for any Trustee or such agent in connection with
any Indenture and the Securities; (viii) any taxes payable in connection
with the issuance, sale and delivery of the Designated Securities to the
Underwriters; and (ix) all other costs and expenses incident to the
performance of its obligations hereunder, which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as otherwise specifically provided in this Section 6 and Sections 8
and 11 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, transfer taxes on resale of
any of the Securities by them, and any advertising expenses connected with
any offers they may make.
7. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the Representatives' discretion, to the condition that all
representations and warranties and other statements of the Company included
or incorporated by reference in the Pricing Agreement relating to such
Designated Securities are true and correct at and as of the Time of
Delivery for such Designated Securities and the condition that prior to
such Time of Delivery the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) (i) The Prospectus in relation to the applicable Designated
Securities shall have been filed with the Commission pursuant to Rule
424(b) under the Act within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with
Section 5(a) hereof; (ii) no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and (iii) all requests for additional information on the part
of the Commission shall have been complied with to the reasonable
satisfaction of the Representatives;
(b) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters
shall have furnished to the Representatives such opinion or opinions, dated
the Time of Delivery, with respect to the incorporation of the Company, the
Indenture, the Securities, the Registration Statement, the Prospectus and
such other related matters as the Representatives may reasonably request,
and such counsel shall have received such documents and information as they
may reasonably request to enable them to pass upon such matters;
(c) The General Counsel of the Company, or other counsel for the
Company satisfactory to the Representatives, shall have furnished to the
Representatives such counsel's written opinion (which may be limited to the
laws of the State of Maryland and the federal laws of the United States),
dated the Time of Delivery in form and substance reasonably satisfactory to
the Representatives, to the following effect:
(i) The Company, The ▇▇▇▇▇ Company LP and each other
Significant Subsidiary (as defined in Rule 405 under the Act) has
been duly incorporated or organized and is validly existing in good
standing under the laws of the State of Maryland or other
jurisdiction of its incorporation or organization, as the case may
be, with corporate, partnership or limited liability company, as
the case may be, power and authority to own its properties and
conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus; and all of the issued shares of capital stock of
the Company have been duly and validly authorized and issued and
are fully paid and non-assessable;
(iii) The Company, The ▇▇▇▇▇ Company LP and each other
Significant Subsidiary has been duly qualified as a foreign
corporation, partnership or limited liability company, as the case
may be, for the transaction of business and is in good standing
under the laws of each other jurisdiction in which the failure so
to qualify and maintain good standing would have a Material Adverse
Effect on the Company and its subsidiaries, taken as a whole (such
counsel being entitled to rely in respect of the opinion in this
clause (iii) upon opinions of local counsel and in respect of
matters of fact upon certificates of officers of the Company);
(iv) To the best of such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries
is a party or of which any property of the Company or any of its
subsidiaries is the subject which is likely, individually or in the
aggregate, to have a Material Adverse Effect on the Company and its
subsidiaries, taken as a whole, and, to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(v) This Agreement and the applicable Pricing Agreement with
respect to the Designated Securities have been duly authorized,
executed and delivered by the Company;
(vi) The Designated Securities have been duly authorized,
executed and issued by the Company;
(vii) The Indenture has been duly authorized, executed and
delivered by the Company;
(viii) The issue and sale of the Designated Securities, the
compliance by the Company with all of the provisions of the
Designated Securities, the Indenture, this Agreement and the
applicable Pricing Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with
or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject except for any
such conflict, breach, violation or default which does not have a
Material Adverse Effect on the Company and its subsidiaries, taken
as a whole, nor will such actions result in any violation of the
provisions of the Company's articles of incorporation or bylaws,
each as then amended or supplemented, or any federal or Maryland
statute or any order, rule or regulation known to such counsel of
any federal or Maryland court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of
their properties;
(ix) No consent, approval, authorization, order, registration
or qualification of or with any federal or Maryland governmental
agency or body or, to such counsel's knowledge, any federal or
Maryland court is required for the issue and sale of the Designated
Securities or the consummation by the Company of the other
transactions contemplated by this Agreement, the applicable Pricing
Agreement or, with respect to the Designated Securities, the
Indenture, except such as have been obtained under the Act or the
Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Designated Securities by the Underwriters; and
(x) The Incorporated Documents (other than the financial
statements and related notes and schedules therein and other
financial data and statistical information included therein or
omitted therefrom, as to which such counsel need express no
opinion), when they were filed with the Commission appeared on
their face to be appropriately responsive, in all material
respects, to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; and nothing has come to such counsel's attention to
cause such counsel to believe that any of the Incorporated
Documents, when they were so filed, contained an untrue statement
of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made when such documents were
so filed, not misleading.
Such counsel shall also advise the Underwriters that nothing has
come to such counsel's attention to cause such counsel to believe that the
Registration Statement (including the Incorporated Documents), as of the
date of filing of the 2003 Form 10-K (other than the financial statements
and related notes and schedules therein and other financial data derived
therefrom included or incorporated by reference therein and the Form T-1
included therein, as to which such counsel need express no opinion),
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 that the Prospectus (including the
Incorporated Documents), as of the date of the Prospectus Supplement and as
of the Time of Delivery (other than the financial statements and related
notes and schedules therein and other financial data derived therefrom
included or incorporated by reference therein and the Form T-1 included
therein, as to which such counsel need express no opinion), contained or
contains an untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and such counsel
does not know of any amendment to the Registration Statement required to be
filed or any contracts or other documents of a character required to be
filed as an exhibit to the Registration Statement or required to be
incorporated by reference into the Prospectus or required to be described
in the Registration Statement or the Prospectus which are not filed or
incorporated by reference or described as required.
(d) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special tax counsel for the Company, shall
have furnished to the Representatives its written opinion, dated the Time
of Delivery, in form and substance reasonably satisfactory to the
Representatives, to the effect that:
(i) The Company qualified to be taxed as a REIT pursuant to
sections 856 through 860 of the Code for its taxable years ended
December 31, 1998 through December 31, 2003, and the Company's
organization and current and proposed method of operation will
enable it to continue to meet the requirements for qualification
and taxation as a REIT under the Code for all future taxable years;
and
(ii) The descriptions of the law and the legal conclusions
contained in the Prospectus Supplement under the captions "Risk
Factors - Risks Related to our Business - We are a real estate
investment trust and will continue to be subject to complex current
and future tax requirements" and "U.S. Federal Tax Considerations"
are correct in all material respects, and the discussions
thereunder fairly summarize the federal income tax considerations
that are likely to be material to a holder of the Securities.
(e) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the
Company, shall have furnished to the Representatives their written opinion
(which may be limited to the laws of the State of New York and federal laws
and may rely on an opinion of the General Counsel of the Company, or other
counsel for the Company reasonably satisfactory to the Representatives, as
to the laws of the State of Maryland), dated the Time of Delivery in form
and substance reasonably satisfactory to the Representatives, to the
following effect:
(i) Each of the Underwriting Agreement and the applicable
Pricing Agreement have been duly executed and delivered by the
Company;
(ii) The Designated Securities have been duly executed and
issued and, when duly authenticated by the Trustee and delivered by
the Company, will constitute valid and binding obligations of the
Company enforceable against the Company in accordance with their
terms and entitled to the benefits of the Indenture;
(iii) The Indenture constitutes a valid and binding obligation
of the Company enforceable against the Company in accordance with
its terms;
(iv) The Indenture has been qualified under the Trust Indenture
Act;
(v) The Indenture conforms, and the Designated Securities will
conform, in all material respects to the descriptions thereof
contained in the Prospectus;
(vi) The Registration Statement has become effective under the
Act, and the filing of the Prospectus pursuant to Rule 424(b) under
the Act has been made in the manner and within the time period
required by Rule 424(b);
(vii) The Initial Registration Statement, at the time it was
declared effective by the Commission, the Rule 462 Registration
Statement, at the time it became effective, and the Prospectus, as
of March 10, 2004, appeared on their respective faces to be
responsive as to form in all material respects to the requirements
of the Act and the Trust Indenture Act and the rules and
regulations promulgated thereunder (other than (a) the financial
statements, notes and schedules thereto included therein or omitted
therefrom, (b) other financial data included therein or omitted
therefrom, (c) the Incorporated Documents and (d) the Form T-1
included therein, as to which such counsel need express no
opinion); and
(viii) The Company is not an "investment company" (as such term
is defined in the Investment Company Act).
Such counsel shall also advise the Underwriters that no facts have
come to such counsel's attention that cause such counsel to believe that
the Registration Statement (including the Incorporated Documents), as of
the date of the 2003 Form 10-K, 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 that the
Prospectus (including the Incorporated Documents), as of the date of the
Prospectus Supplement and as of such Time of Delivery, contained or
contains an untrue statement of a material fact or omitted or omits to
state a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading. In each case,
however, such counsel need express no view or belief with respect to
financial statements, notes, or schedules and other financial data included
in or omitted therein or therefrom.
The opinions set forth in paragraphs (ii) and (iii) above of this
Section 7(e) may be subject to: (i) applicable bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium or other laws now or
hereafter in effect affecting creditors' rights generally; and (ii) general
principles of equity (including, without limitation, standards of
materiality, good faith, fair dealing and reasonableness) whether such
principles are considered in a proceeding in equity or at law;
(f) At the Time of Delivery for such Designated Securities, KPMG
LLP, the independent certified public accountants of the Company, who have
certified the financial statements of the Company and its subsidiaries,
included or incorporated by reference in the Registration Statement, shall
have furnished to the Representatives letters, dated the respective dates
of delivery, in form and substance satisfactory to the Representatives,
containing statements and information of the type customarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained or
incorporated by reference in the Registration Statement and the Prospectus;
(g) (i) The Company and its subsidiaries, taken as a whole, have
not sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material loss
or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus and (ii) since the respective dates as of
which information is given in the Registration Statement and the Prospectus
prior to the date of the Pricing Agreement relating to the Designated
Securities there shall not have been any change in the capital stock (other
than issuances of capital stock pursuant to bonus stock awards granted in
the ordinary course of business, upon exercise of options and stock
appreciation rights, upon conversion or redemption of convertible
securities and pursuant to the terms of the Contingent Stock Agreement, in
each case, except with respect to bonus stock awards granted in the
ordinary course of business, which were outstanding as of the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus) or any material adverse change in the long-term debt of
the Company and its subsidiaries, taken as a whole (it being understood
that, absent unusual circumstances, an increase in long-term debt of the
Company and its subsidiaries, taken as a whole, of less than 5% would not
be a material and adverse change to the Company and its subsidiaries, taken
as a whole), or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the business,
properties, management, financial condition or results of operations (based
on Funds From Operations) of the Company and its subsidiaries, taken as a
whole, except as set forth or contemplated in the Prospectus, the effect of
which, in any such case described in clause (i) or (ii), is in the judgment
of the Representatives so material and adverse as to make it impracticable
or inadvisable to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in the
Prospectus;
(h) On or after the date of the Pricing Agreement relating to the
Designated Securities, (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities by any "nationally recognized
statistical rating organization", as the term is defined by the Commission
for purposes of Rule 436(g)(2) under the Act and (ii) no such organization
shall have publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any of the Company's
debt securities;
(i) On or after the date of the Pricing Agreement relating to the
Designated Securities, there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally
on the New York Stock Exchange; (ii) a suspension or material limitation in
trading in the Company's securities on the New York Stock Exchange; (iii) a
general moratorium on commercial banking activities in New York declared by
either federal or New York State authorities; (iv) the outbreak or
escalation of hostilities involving the United States or the declaration by
the United States of a national emergency or war; or (v) the occurrence of
any other major calamity or crisis in the United States or affecting the
United States, if the effect of any such event specified in clauses (iv)
and (v) in the Representatives' reasonable judgment makes it impracticable
or inadvisable to proceed with the public offering or the delivery of the
Designated Securities or both on the terms and in the manner contemplated
in the Prospectus; and
(j) The Company shall have furnished or caused to be furnished to
the Representatives at the Time of Delivery for the Designated Securities a
certificate or certificates of officers of the Company in such form and
executed by such officers of the Company as shall be satisfactory to the
Representatives, as to the accuracy of the representations and warranties
of the Company herein at and as of such Time of Delivery, as to the
performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set forth
in Sections 7(a), (g) and (h) and as to such other matters (including,
without limitation, with respect to compliance with debt agreements and
instruments) as the Representatives may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter,
its directors, officers and employees and each person, if any, who controls
any Underwriter within the meaning of the Act, from and against any losses,
claims, damages or liabilities, joint or several, or any action in respect
thereof to which such Underwriter, officer, employee or controlling person
may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities or actions arise out of or are based upon
(i) an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus and any other
prospectus relating to the Designated Securities, or any amendment or
supplement thereto, or (ii) the omission or alleged omission to state in
any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus and any other prospectus relating to
the Designated Securities, or any amendments or supplements thereto a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter and
each such director, officer, employee and controlling person promptly upon
demand for any legal or other expenses reasonably incurred by such
Underwriter and each such director, officer, employee and controlling
person in connection with investigating or defending any such loss, damage,
liability, action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus and any
other prospectus relating to the Designated Securities, or any such
amendment or supplement, in reliance upon and in conformity with
information furnished in writing to the Company by any Underwriter of
Designated Securities through the Representatives expressly for use in the
Prospectus relating to such Securities.
(b) Each Underwriter, severally and not jointly, will indemnify and
hold harmless the Company against any losses, claims, damages or
liabilities to which the Company may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) an untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus and any other prospectus relating to
the Designated Securities, or any amendment or supplement thereto, or (ii)
the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus and any other
prospectus relating to the Designated Securities, or any such amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives
expressly for use therein, and will reimburse the Company for any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under Section
8(a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party under such subsection
for any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation provided,
however, that any indemnified party shall have the right to employ separate
counsel in any such action and to participate in the defense thereof but
the fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment thereof has been specifically
authorized by the indemnifying party in writing, (ii) such indemnified
party shall have been advised by such counsel that there may be one or more
legal defenses available to it which are different from or additional to
those available to the indemnifying party and in the reasonable judgment of
such counsel it is advisable for such indemnified party to employ separate
counsel or (iii) the indemnifying party has failed to assume the defense of
such action and employ counsel reasonably satisfactory to the indemnified
party, in which case, if such indemnified party notifies the indemnifying
party in writing that it elects to employ separate counsel at the expense
of the indemnifying party, the indemnifying party shall not have the right
to assume the defense of such action on behalf of such indemnified party,
it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate counsel (plus local counsel in each such
jurisdiction) at any time for all such indemnified parties. If the
indemnifying party does not assume the defense of such action, it is
understood that the indemnifying party shall not, in connection with any
one such action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one
separate counsel (plus local counsel in each such jurisdiction) at any time
for all such indemnified parties, which firms shall be designated in
writing by you, if the indemnified parties under this Section 8 consist of
any Underwriter of the Designated Securities or any of its respective
directors, officers, employees or controlling persons, or by the Company,
if the indemnified parties under this Section 8 consist of the Company or
any of its directors, officers, administrative trustees or controlling
persons. The indemnifying party shall not be liable for any settlement of
an action or claim for monetary damages which an indemnified party may
effect without the consent of the indemnifying party, which consent shall
not be unreasonably withheld. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification
or contribution may be sought hereunder (whether or not the indemnified
party is an actual or potential party to such action or claim), unless such
settlement, compromise or judgment (i) includes an unconditional release of
the indemnified party from all liability arising out of such action or
claim and (ii) does not include a statement as to, or an admission of,
fault, culpability or a failure to act, by or on behalf of any indemnified
party. For purposes of this Section 8, references to "counsel" shall
include a firm of attorneys.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
Section 8(a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters of the Designated Securities on the other
from the offering of the Designated Securities to which such loss, claim,
damage or liability (or action in respect thereof) relates. If, however,
the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under Section 8(c) above, then each indemnifying party
shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative
benefits referred to in the immediately preceding sentence but also the
relative fault of the Company on the one hand and the Underwriters of the
Designated Securities on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one
hand and such Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from such offering (before deducting
expenses) received by the Company bear to the total commissions or
discounts received by such Underwriters in respect thereof. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading relates to
information supplied by the Company on the one hand or by any such
Underwriters on the other and the parties' relative intent, 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 contribution pursuant to this Section 8(d) were
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to above in
this Section 8(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this Section 8(d) shall be deemed to include
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 8(d), no Underwriter shall
be required to contribute any amount in excess of the amount by which the
total public offering price at which the applicable Designated Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters of
Designated Securities in this Section 8(d) to contribute are several in
proportion to their respective underwriting obligations with respect to
such Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of
any Underwriter and to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters
under this Section 8 shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to
each person, if any, who controls the Company within the meaning of the
Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Designated Securities which it has agreed to purchase under the Pricing
Agreement relating to such Designated Securities, the Representatives may
in their discretion arrange for themselves or another party or other
parties to purchase such Designated Securities on the terms contained
herein. If within thirty-six hours after such default by any Underwriter
the Representatives do not arrange for the purchase of such Designated
Securities, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to the Representatives to purchase such Designated Securities
on such terms. In the event that, within the respective prescribed period,
the Representatives notify the Company that they have so arranged for the
purchase of such Designated Securities, or the Company notifies the
Representatives that it has so arranged for the purchase of such Designated
Securities, the Representatives or the Company shall have the right to
postpone the Time of Delivery for such Designated Securities for a period
of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus,
or in any other documents or arrangements, and the Company agrees to file
promptly any amendments or supplements to the Registration Statement or the
Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include
any person substituted under this Section with like effect as if such
person had originally been a party to the Pricing Agreement with respect to
such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Designated Securities of a defaulting Underwriter or Underwriters by
the Representatives and the Company as provided in subsection (a) above,
the aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount
of the Designated Securities, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the principal amount of
Designated Securities which such Underwriter agreed to purchase under the
Pricing Agreement relating to such Designated Securities and, in addition,
to require each non-defaulting Underwriter to purchase its pro-rata share
(based on the principal amount of Designated Securities which such
Underwriter agreed to purchase under such Pricing Agreement) of the
Designated Securities of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Designated Securities of a defaulting Underwriter or Underwriters by
the Representatives and the Company as provided in subsection (a) above,
the aggregate principal amount of Designated Securities which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of the
Designated Securities as referred to in subsection (b) above, or if the
Company shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Designated Securities of a
defaulting Underwriter or Underwriters, then the Pricing Agreement relating
to such Designated Securities shall thereupon terminate, without liability
on the part of any non-defaulting Underwriter or the Company, except for
the expenses to be borne by the Company and the Underwriters as provided in
Section 6 hereof and the indemnity and contribution agreements in Section 8
hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several
Underwriters, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain in full force
and effect, regardless of any investigation (or any statement as to the
results thereof) made by or on behalf of any Underwriter or any officer or
director or controlling person of any Underwriter, or the Company, or any
officer or director or controlling person of the Company, and shall survive
delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof or if the condition in Section 7(i) is not satisfied, the Company
shall not then be under any liability to any Underwriter with respect to
the Designated Securities covered by such Pricing Agreement except as
provided in Sections 6 and 8 hereof, but, if for any other reason,
Designated Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale
and delivery of such Designated Securities, but the Company shall then be
under no further liability to any Underwriter with respect to such
Designated Securities except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters
of Designated Securities shall act on behalf of each of such Underwriters,
and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made
or given by such Representatives jointly or by such of the Representatives,
if any, as may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Representatives as
set forth in the Pricing Agreement; and if to the Company shall be
delivered or sent by mail, telex or facsimile transmission to the address
of the Company set forth in the Registration Statement, Attention: General
Counsel; provided, however, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its
underwriters' questionnaire, or telex constituting such questionnaire,
which address will be supplied to the Company by the Representatives upon
request. Any such statements, requests, notices or agreements shall take
effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Company and, to
the extent provided in Sections 8 and 10 hereof, the directors, officers
and employees of the Company or any Underwriter and each person who
controls the Company or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement or any
such Pricing Agreement. No purchaser of any of the Securities from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day on which the New York Stock
Exchange, Inc. is open for trading.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same
instrument.
Very truly yours,
THE ▇▇▇▇▇ COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
BANC OF AMERICA SECURITIES LLC
By:/s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Principal
UBS SECURITIES LLC
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Associate Director
On behalf of themselves and each of the other Underwriters
ANNEX I
PRICING AGREEMENT
-----------------
_____________ __, 20__
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Banc of America Securities LLC
UBS Securities LLC
As Representatives of the several
Underwriters named in Schedule I hereto
Ladies and Gentlemen:
The ▇▇▇▇▇ Company, a Maryland corporation (the "Company"), proposes,
subject to the terms and conditions stated herein and in the Underwriting
Agreement, dated March __, 2004 (the "Underwriting Agreement"), to issue
and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Securities specified in Schedule II hereto (the
"Designated Securities"). Each of the provisions of the Underwriting
Agreement is incorporated herein by reference in its entirety, and shall be
deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein, and each of the
representations and warranties set forth therein shall be deemed to have
been made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of
the Underwriting Agreement shall be deemed to be a representation or
warranty as of the date of the Underwriting Agreement in relation to the
Prospectus (as therein defined), and also a representation and warranty as
of the date of this Pricing Agreement in relation to the Prospectus
relating to the Designated Securities which are the subject of this Pricing
Agreement. Each reference to the Representatives herein and in the
provisions of the Underwriting Agreement so incorporated by reference shall
be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Underwriters of the
Designated Securities pursuant to Section 12 of the Underwriting Agreement
and the address of the Representatives referred to in such Section 12 are
set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in
the form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the
time and place and at the purchase price to the Underwriters set forth in
Schedule II hereto, the principal amount of Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us six counterparts hereof (one for the Company and one for
each of the Representatives plus one for each counsel) and upon acceptance
hereof by you, on behalf of each of the Underwriters, this letter and such
acceptance hereof, including the provisions of the Underwriting Agreement
incorporated herein by reference, shall constitute a binding agreement
between each of the Underwriters and the Company.
Very truly yours,
THE ▇▇▇▇▇ COMPANY
By:
------------------------
Name:
Title:
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By:
-------------------------------
Name:
Title:
BANC OF AMERICA SECURITIES LLC
By:
-------------------------------
Name:
Title:
UBS SECURITIES LLC
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
On behalf of themselves and each of the other Underwriters
SCHEDULE I
----------
Principal Amount
of Designated Securities
Underwriter to be Purchased
----------- ---------------
▇.▇. ▇▇▇▇▇▇ Securities Inc. $
Banc of America Securities LLC $
UBS Securities LLC $
[Insert additional Underwriters] $
-----------
Total $
SCHEDULE II
-----------
TITLE OF DESIGNATED SECURITIES:
______% Notes due 20__
AGGREGATE PRINCIPAL AMOUNT:
$
-------------------
PRICE TO PUBLIC:
____% of the principal amount of the Designated Securities, plus
accrued interest, if any, from _____________, 20__
PURCHASE PRICE BY UNDERWRITERS:
___% of the principal amount of the Designated Securities, plus
accrued interest, if any, from _____________, 20__
FORM OF DESIGNATED SECURITIES:
Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian, to be made available for checking by the Representatives at
least twenty-four hours prior to the Time of Delivery at the office of
DTC.
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal or other same day funds
TIME OF DELIVERY:
9:30 a.m. (New York City time), _____________, 20__
INDENTURE:
Indenture, dated as of February 24, 1995 (the "Indenture") between the
Company and ▇.▇. ▇▇▇▇▇▇ Trust Company, National Association (as
successor to Bank One, National Association, formerly known as the
First National Bank of Chicago), as Trustee
MATURITY:
_____________, 20__
INTEREST RATE:
___% per annum
INTEREST PAYMENT DATES:
_____________ and _____________, beginning on _____________, 20__
REDEMPTION PROVISIONS:
The Designated Securities may be redeemed, in whole or in part, at any
time at the option of the Company, for a Make-Whole Price (as
described in the Prospectus Supplement dated the date hereof relating
to the Designated Securities).
SINKING FUND PROVISIONS:
None.
CONVERTIBILITY OR EXCHANGEABILITY PROVISIONS:
None.
DEFEASANCE PROVISIONS:
As set forth in the Indenture.
OTHER TERMS:
For purposes of the Designated Securities and, insofar as used with
respect to the Designated Securities, the Indenture, (i) the
modifications set forth under the caption "Description of the
Notes--Covenants" in the prospectus supplement dated _________ __,
20__ relating to the Designated Securities (the "Prospectus
Supplement"), will apply to the covenants set forth under "Description
of Debt Securities--Certain Covenants--Limitation on the Incurrence of
Debt" in the Prospectus and (ii) the additional covenants set forth
under the caption "Description of the Notes--Covenants" in the
Prospectus Supplement will also apply.
For purposes of the Designated Securities and, insofar as used with
respect to the Designated Securities, the Indenture, the definitions
set forth under the caption "Description of the Notes--Certain
Definitions" in the Prospectus Supplement will apply and supersede any
conflicting definitions contained in the Indenture.
For purposes of the Designated Securities and, insofar as used with
respect to the Designated Securities, the Indenture, the modifications
set forth under the caption "Description of the Notes--Consolidation,
Merger, Sale, Conveyance and Lease" in the Prospectus Supplement will
apply to the provisions set forth under the caption "Description of
the Debt Securities--Consolidation, Merger, Sale, Conveyance and
Lease" in the Prospectus.
For purposes of the Designated Securities and, insofar as used with
respect to the Designated Securities, the Indenture, the following
shall replace clause (5) of Section 501 of the Indenture:
(5) a default under any bond, debenture, note, mortgage, indenture
or instrument under which there may be issued or by which
there may be secured or evidenced any indebtedness for money
borrowed by the Company (or by any Subsidiary, the repayment
of which the Company has guaranteed or for which the Company
is directly responsible or liable as obligor or guarantor)
(including a default with respect to Securities of any series
other than that series) having an aggregate principal amount
outstanding of at least $10,000,000, whether such indebtedness
now exists or shall hereafter be created, which default shall
have resulted from the failure to pay such indebtedness at its
maturity or shall have resulted in such indebtedness being
declared due and payable prior to the date on which it would
otherwise have become due and payable, without such
acceleration having been rescinded or annulled, within a
period of 10 days after there shall have been given, by
registered or certified mail, to the Company by the Trustee or
to the Company and the Trustee by the Holders of at least 25%
in principal amount of the Outstanding Securities of that
series a written notice specifying such default and requiring
the Company to cause such acceleration to be rescinded or
annulled and stating that such notice is a "Notice of Default"
hereunder; or
CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Banc of America Securities LLC
UBS Securities LLC
Address for Notices, etc.:
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: High Grade Syndicate Desk-8th Floor
Banc of America Securities LLC
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: High Grade Capital Markets Transaction Management
-and-
UBS Securities LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Fixed Income Syndicate
UNDERWRITERS COUNSEL:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
