Exhibit 1(a)
United Dominion Realty Trust, Inc.
Debt Securities
Underwriting Agreement
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February 29, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Securities LLC
First Union Securities, Inc.
Chase Securities Inc.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
c/o Banc of America Securities LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
From time to time United Dominion Realty Trust, Inc., a Virginia
corporation (the "Company"), United Dominion Realty, L.P., a Virginia limited
partnership (the "Operating Partnership"), UDR Western Residential, Inc., a
Virginia corporation ("Residential"), UDRT of North Carolina, L.L.C., a North
Carolina limited liability company ("North Carolina"), and ASR Investments
Corporation, a Maryland corporation ("Investment"; the Operating Partnership,
Residential, North Carolina and Investment are hereinafter sometimes called,
collectively, the "Operating Entities" and, individually, an "Operating
Entity"), propose 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, the Company proposes 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 the Company's debt securities (the "Securities")
specified in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities"). The terms and rights of any particular
issuance of Designated Securities shall be as specified in the Pricing Agreement
relating thereto and in or pursuant to the indenture (the "Indenture")
identified in such Pricing Agreement.
All references herein to any "subsidiary" or "subsidiaries" of the Company
shall be deemed to include the Operating Entities unless otherwise expressly
stated.
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
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 any of 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
the registration statement and prospectus with respect thereto) the terms 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 telegraphic 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 and the Operating Entities jointly and severally represent
and warrant to, and agree with, each of the Underwriters that:
(a) Two registration statements on Form S-3 (File Nos. 333-27221 and
333-92667) (the "Initial Registration Statements") in respect of the
Securities have been filed with the Securities and Exchange Commission (the
"Commission"); the Initial Registration Statements and any post-effective
amendment thereto, each in the form heretofore delivered or to be delivered
to the Representatives and, excluding exhibits to such registration
statements but including all documents incorporated by reference in the
prospectus contained in the latest registration statement, to the
Representatives for each of the other Underwriters, have been declared
effective by the Commission in such form; other than a registration
statement, if any, increasing the size of the offering (a "Rule 462(b)
Registration Statement") filed pursuant to Rule 462(b) under the Securities
Act of 1933, as amended (the "Act"), which became effective upon filing and
other than exhibits
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filed as part of documents incorporated by reference in the Initial
Registration Statements, no other document with respect to the Initial
Registration Statements or any document incorporated by reference therein
has heretofore been filed or transmitted for filing with the Commission
(other than prospectuses filed pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Act each in the form heretofore
delivered to the Representatives); and no stop order suspending the
effectiveness of the Initial Registration Statements, any post-effective
amendment thereto or the Rule 462(b) Registration Statement, if any, has
been issued and no proceeding for that purpose has been initiated or
threatened by the Commission; any preliminary prospectus included in the
Initial Registration Statements or filed with the Commission pursuant to
Rule 424(a) under the Act is hereinafter called a "Preliminary Prospectus";
the various parts of the Initial Registration Statements and the Rule
462(b) Registration Statement, if any, including all exhibits thereto and
the documents incorporated by reference in the prospectus contained in the
Initial Registration Statements at the time such part of the registration
statement became effective but excluding any Form T-1, each as amended at
the time such part of the Initial Registration Statements became effective
or such part of the Rule 462(b) Registration Statement, if any, became or
hereafter becomes effective, are hereinafter collectively called the
"Registration Statement"; the prospectus relating to the Securities, in the
form in which it has most recently been filed, or transmitted for filing,
with the Commission on or prior to the date of this Agreement, is
hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the date
of such Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of the
Company filed pursuant to Sections 13(a) or 15(d) of the Exchange Act after
the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; any reference to the Prospectus as
amended or supplemented shall be deemed to refer to the Prospectus as
amended or supplemented in relation to the applicable Designated Securities
in the form first used to confirm sales of such Designated Securities,
including any documents incorporated by reference therein as of the date of
such amendment or supplement, as the case may be; and if the Company elects
to rely on Rule 434 under the Act, any reference to the Prospectus shall be
deemed to include, without limitation, the form of prospectus and the
abbreviated term sheet, taken together, provided to the Underwriters by the
Company in reliance on Rule 434 under the Act (the "Rule 434 Prospectus");
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in
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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 or any
further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will
conform 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 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;
provided, however, that this representation and warranty shall not apply to
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 as amended or supplemented relating to such Designated
Securities;
(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
and do not and will not, as of the respective effective dates as to the
Registration Statement, any Rule 462(b) Registration Statement and any
amendment thereto and as of the applicable filing date as to the Prospectus
and any amendment or supplement thereto and as of the Time of Delivery (as
defined in Section 4 hereof) with respect to any Designated Securities,
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; provided, however, that this representation and
warranty shall not apply to 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 as amended or supplemented relating to
such Designated Securities;
(d) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the Commonwealth of
Virginia, with full power and authority to own, lease and operate its
properties and conduct its business as described in the Prospectus; and the
Company is duly qualified to transact business in all jurisdictions in
which the conduct of its business requires such qualification except where
the failure to so qualify would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company;
(e) Each subsidiary of the Company has been duly organized and is
validly existing as a corporation, limited liability company, limited
partnership or real estate investment trust in good standing under the laws
of the jurisdiction of its incorporation or
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organization, with power and authority to own, lease and operate its
properties and conduct its business as described in the Prospectus and is
duly qualified to transact business in all jurisdictions in which the
conduct of its business requires such qualification except where the
failure to so be in good standing would not have a material adverse effect
on the condition, financial or otherwise, or the earnings, business affairs
or business prospects of the Company and its subsidiaries, considered as
one enterprise; each such subsidiary is duly qualified to transact business
in all jurisdictions in which the conduct of its business requires such
qualification, or in which the failure to qualify would have a materially
adverse effect upon the business of such subsidiary; all of the issued and
outstanding shares of capital stock of each such corporate subsidiary and
all of the issued and outstanding shares of beneficial interest of each
such real estate investment trust subsidiary have been duly authorized and
validly issued, are fully paid and non-assessable and are owned by the
Company or a subsidiary of the Company, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity; all of the
issued and outstanding partnership interests of each such partnership
subsidiary and all of the issued and outstanding limited liability company
interests of each such limited liability company subsidiary have been duly
authorized and validly issued, are fully paid and (except in the case of
general partnership interests) non-assessable and, except as otherwise
disclosed in the Prospectus, are owned by the Company and/or one or more
subsidiaries of the Company, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; and the Company
and/or one or more subsidiaries of the Company are the only members or
general partners of the Company's limited liability company or limited
partnership subsidiaries, as applicable, and own the entire membership or
general partnership interest in each such subsidiary free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity;
(f) Neither the Company nor any of its subsidiaries has 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 material change in the capital stock,
total assets or long-term debt of the Company or any of its subsidiaries or
any material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, management,
financial position, shareholders' equity or results of operations of the
Company and its subsidiaries, otherwise than as set forth or contemplated
in the Prospectus as amended prior to the date of the Pricing Agreement
relating to the Designated Securities.
(g) 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;
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(h) The Securities have been duly and validly 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 entitled to the benefits provided by the Indenture, which will
be substantially in the form filed as an exhibit to the Registration
Statement; the Indenture has been duly authorized and duly qualified under
the Trust Indenture Act and, at the Time of Delivery for such Designated
Securities, the Indenture will constitute a valid and legally binding
instrument, enforceable in accordance with its terms, subject, as to
enforcement, 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 as amended or supplemented with respect to such Designated
Securities;
(i) The issue and sale of the Securities and the compliance by the
Company and the Operating Entities with all of the provisions of the
Securities, the Indenture, this Agreement, and any 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, nor will such action
result in any violation of the provisions of the Articles of Incorporation
or By-laws of the Company, Residential or Investment, the certificate of
limited partnership or limited partnership agreement of the Operating
Partnership, the operating agreement of North Carolina 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 respective properties; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
Securities or the consummation by the Company or any of the Operating
Entities of the transactions contemplated by this Agreement, or any Pricing
Agreement or the Indenture, except such as have been, or will have been
prior to the Time of Delivery, obtained under the Act and 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 Securities by
the Underwriters;
(j) The statements set forth in the Prospectus as amended or
supplemented with respect to the Designated Securities under the captions
"Description of Our Debt Securities" and "Description of the Notes" (or
under any similar caption describing the Designated Securities), insofar as
they purport to constitute a summary of the terms of the Securities, and
under the captions "Description of Our Capital Stock," "Plan of
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Distribution" and "Underwriting", insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate,
complete and fair;
(k) Neither the Company nor any of its subsidiaries is in violation of
its Articles of Incorporation or By-laws, limited partnership agreement,
limited liability company agreement, operating agreement or other
organizational documents or in default in the performance or observance of
any material obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of its
properties may be bound;
(l) 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, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a material adverse effect on the current or future consolidated
financial position, shareholders' equity or results of operations of the
Company and its subsidiaries; and, to the best of the Company's knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(m) The financial statements together with related notes and schedules
of the Company and its subsidiaries and of any companies, other entities or
properties acquired or to be acquired by the Company, in each case as set
forth or incorporated by reference in the Prospectus, present fairly the
financial position and the results of operations of the Company and its
subsidiaries and of such companies, entities and properties, as the case
may be, at the indicated dates and for the indicated periods. Such
financial statements have been prepared in accordance with generally
accepted principles of accounting, consistently applied throughout the
periods involved, and all adjustments necessary for a fair presentation of
results for such periods have been made. The summary financial and
statistical data included in the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with the
financial statements presented therein; the pro forma financial statements
and related notes thereto included in the Prospectus present fairly the
information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases described therein,
and the assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the transactions
and circumstances referred to therein;
(n) The Company and its subsidiaries have good and marketable title
to, or valid and enforceable leasehold estates in, all items of real and
personal property referred to in the Prospectus as owned or leased by them,
in each case free and clear of all liens, encumbrances, claims, security
interests and defects, other than those referred to in the Prospectus or
which are not material in amount. Each lease of real property by the
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Company or any of its subsidiaries as lessor requiring annual lease
payments in excess of $100,000 is the legal, valid and binding obligation
of the lessee in accordance with its terms (except that the remedy of
specific performance and injunctive and other forms of equitable relief may
be subject to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought and to the Bankruptcy Act) and
the rents which at present have remained due and unpaid for more than 30
days are not payable under leases such that, were no further rental
payments to be received under such leases, the financial condition or
results of operations of the Company and its subsidiaries would be
materially adversely affected thereby. The Company has no reason to
believe that the lessee under any lease (excluding leases for which rent
payments due for the remainder of such lease are less than $500,000)
calling for annual lease payments in excess of $500,000 is not financially
capable of performing its obligations thereunder;
(o) The Company has filed all Federal, local and foreign income tax
returns which have been required to be filed or has filed extensions and
has paid all taxes indicated by said returns and all assessments received
by it to the extent that such taxes have become due and are not being
contested in good faith;
(p) The Company and each of its subsidiaries hold all material
licenses, certificates and permits from governmental authorities which are
necessary to the conduct of their respective businesses; and neither the
Company nor any of its subsidiaries has infringed any patents, patent
rights, trade names, trademarks or copyrights, which infringement is
material to the business of the Company or any of its subsidiaries;
(q) With respect to all tax periods regarding which the Internal
Revenue Service is or will be entitled to assert any claim, the Company has
met the requirements for qualification as a real estate investment trust
under Sections 856 through 860 of the Internal Revenue Code of 1986, as
amended (the "Code"), and the Company's present and contemplated
operations, assets and income continue to meet such requirements;
(r) The conditions for use of registration statements on Form S-3 set
forth in the General Instructions on Form S-3 have been satisfied and the
Company is entitled to use such form for the transaction contemplated
herein;
(s) The Company has no knowledge of (a) the unlawful presence of any
hazardous substances, hazardous materials, toxic substances or waste
materials (collectively, "Hazardous Materials") on any of the properties
owned by it or any of its subsidiaries, or of (b) 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 materially adversely affect the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company or any of its subsidiaries. In connection with the construction on
or operation and use of the properties owned by the Company or any of its
subsidiaries, the Company represents that it has no knowledge of any
material failure to comply with all applicable local, state and federal
environmental
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laws, regulations, ordinances and administrative and judicial orders
relating to the generation, recycling, reuse, sale, storage, handling,
transport and disposal of any Hazardous Materials;
(t) The Company is not and, after giving effect to the 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");
(u) Ernst & Young LLP, who have certified certain financial statements
of the Company and its subsidiaries, and each other accounting firm which
has certified any other financial statements which are included or
incorporated by reference in the Prospectus, are each independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(v) At the date of the Pricing Agreement with respect to the
applicable Designated Securities, such Pricing Agreement and this Agreement
will have been duly authorized, executed and delivered by the Company and
the Operating Entities;
(w) The total real estate owned of the Operating Entities and the
Company, in each case excluding any of their respective subsidiaries other
than the Operating Entities, determined on a consolidated basis, are equal
to at least 50% of the total consolidated real estate owned of the Company;
the total net operating income of the Operating Entities and the Company
for the year ended December 31, 1999, in each case excluding any of their
respective subsidiaries other than the Operating Entities, determined on a
consolidated basis, were equal to at least 50% of the total consolidated
net operating income of the Company for the year ended December 31, 1999.
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 as
amended or supplemented.
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 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 Securities.
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5. The Company and the Operating Entities, jointly and severally, agree
with each of the Underwriters of any Designated Securities that:
(a) If the Company does not elect to rely on Rule 434 under the Act,
immediately following execution and delivery of the applicable Pricing
Agreement, the Company will prepare the Prospectus as amended or
supplemented in relation to the applicable Designated Securities in a form
approved by the Representatives and will file such Prospectus pursuant to
Rule 424(b) under the Act not later than the Commission's close of business
on the 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), or if the
Company elects to rely on Rule 434 under the Act, immediately following
execution and delivery of the applicable Pricing Agreement, the Company
will prepare an abbreviated term sheet relating to the Designated
Securities in a form approved by the Representatives that complies with the
requirements of Rule 434 under the Act and will file such form of Rule 434
Prospectus complying with Rule 434(c)(2) of the Act pursuant to Rule 424(b)
under the Act not later than the Commission's close of business on the
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); the Company will make no
further amendment or any supplement to the Registration Statement or
Prospectus as amended or supplemented 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; the Company will
advise the Representatives promptly of any such amendment or supplement
after such Time of Delivery and will furnish the Representatives with
copies thereof; the Company will 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 will 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 of any order preventing
or suspending the use of any prospectus relating to the 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 the Securities or suspending any such qualification, the Company will
promptly use its best efforts to obtain the withdrawal of such order;
(b) If necessary, promptly from time to time the Company will take
such action as the Representatives may reasonably request to qualify such
Securities for offering and
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sale under the securities laws of such jurisdictions as the Representatives
may request and will comply with such laws so as to permit the continuance
of sales and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of such Securities, provided 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) Prior to 10:00 a.m. New York City time on the New York business
day next succeeding the date of the applicable Pricing Agreement and from
time to time, the Company will furnish the Underwriters with copies of the
Prospectus as amended or supplemented in New York City in such quantities
as the Representatives may reasonably request, and, if the delivery of a
prospectus is required at any time in connection with the offering or sale
of the 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 or 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 by
reference in the Prospectus in order to comply with the Act, the Exchange
Act or the Trust Indenture Act, the Company will notify the Representatives
and upon their request will file such document and will 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) The Company will make generally available to its securityholders
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);
(e) During the period beginning from the date of the Pricing Agreement
for such Designated Securities and continuing to and including the later of
(i) the termination of trading restrictions for such Designated Securities,
as notified to the Company by the Representatives and (ii) the Time of
Delivery for such Designated Securities, the Company will not offer, sell,
contract to sell or otherwise dispose of any debt securities of the Company
which mature more than one year after such Time of Delivery and which are
substantially similar to such Designated Securities, without the prior
written consent of Banc of America Securities LLC;
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(f) The Company will use the net proceeds received by it from the sale
of the Securities in the manner specified in the Prospectus under the
caption "Use of Proceeds"; and
(g) The Company will continue to elect to qualify as a "real estate
investment trust" under the Code, and will use its best efforts to continue
to meet the requirements to qualify as a "real estate investment trust".
6. The Company and the Operating Entities, jointly and severally, covenant
and agree with the several Underwriters that they will pay or cause to be paid
the following: (i) the reasonable 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 amendments and supplements thereto (including
each abbreviated term sheet delivered by the Company pursuant to Rule 434 under
the Act) and the mailing and delivering of copies thereof to the Underwriters
and dealers; (ii) the cost of printing or producing any Agreement among
Underwriters, this Agreement, any Pricing Agreement, any Indenture, any Blue Sky
and Legal Investment Surveys, closing documents (including any compilation
thereof) and any other documents in connection with the offering, purchase, sale
and delivery of the Securities; (iii) all expenses, if any, 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
counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky and Legal Investment Surveys; (iv) any fees charged
by securities rating services for rating the Securities; (v) any filing fees
incident to, and the fees and disbursements of counsel for 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 fees and expenses of any Trustee and any
agent of any Trustee and the fees and disbursements of counsel for any Trustee
in connection with any Indenture and the Securities; and (viii) all other costs
and reasonable 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 provided in this Section, and Sections 8
and 10 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 discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company and the
Operating Entities in or incorporated by reference in the Pricing Agreement
relating to such Designated Securities are, at and as of the Time of Delivery
for such Designated Securities, true and correct, the condition that the Company
and the Operating Entities shall have performed all of their obligations
hereunder theretofore to be performed, and the following additional conditions:
12
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) 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; 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 all requests for additional information on the part of the
Commission shall have been complied with to the Representatives' reasonable
satisfaction;
(b) ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, shall have
furnished to the Representatives such opinion or opinions, dated the Time
of Delivery for such Designated Securities, with respect to the matters
covered in paragraphs (i), (vi), (vii), (viii), (xi) and (xiv) of
subsection (c) below as well as such other related matters as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters. In rendering their opinion, ▇▇▇▇▇ &
Wood LLP may rely, as to all matters governed by or arising under the laws
of the Commonwealth of Virginia and the States of Maryland and North
Carolina, on the opinion of Hunton & ▇▇▇▇▇▇▇▇ delivered pursuant to Section
7(c) below;
(c) Hunton & ▇▇▇▇▇▇▇▇, counsel for the Company, shall have furnished
to the Representatives their written opinion, dated the Time of Delivery
for such Designated Securities, in form and substance satisfactory to the
Representatives, to the effect set forth below (such opinion shall be
rendered to the Underwriters at the request of the Company and shall so
state therein and shall further state that ▇▇▇▇▇ & Wood LLP, in rendering
their opinion pursuant to Section 7(b) above, may rely on such opinion of
Hunton & ▇▇▇▇▇▇▇▇ as to all matters governed by or arising under the laws
of the Commonwealth of Virginia and the States of Maryland and North
Carolina) :
(i) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the
Commonwealth of Virginia, with corporate power and authority to own
its properties and conduct its business as described in the Prospectus
as amended or supplemented;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus as amended or supplemented 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 is duly qualified to transact business in
all jurisdictions in which the conduct of its business requires such
qualification, or in which the failure to qualify would have a
materially adverse effect upon the business of the Company;
13
(iv) Each subsidiary of the Company has been duly organized
and is validly existing as a corporation, limited liability company,
limited partnership or real estate investment trust in good standing
under the laws of the jurisdiction of its incorporation or
organization, with power and authority to own, lease and operate its
properties and conduct its business as described in the Prospectus as
amended or supplemented, and is duly qualified to transact business in
all jurisdictions in which the conduct of its business requires such
qualification except where the failure to so be in good standing would
not have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of
the Company and its subsidiaries, considered as one enterprise; each
such subsidiary is duly qualified to transact business in all
jurisdictions in which the conduct of its business requires such
qualification, or in which the failure to qualify would have a
materially adverse effect upon the business of such subsidiary; all of
the issued and outstanding shares of capital stock of each such
corporate subsidiary and all of the issued and outstanding shares of
beneficial interest of each such real estate investment trust
subsidiary have been duly authorized and validly issued, are fully
paid and non-assessable and are owned by the Company or by a
subsidiary of the Company, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; all of the
issued and outstanding partnership interests of each such partnership
subsidiary and all of the issued and outstanding limited liability
company interests of each such limited liability company subsidiary
have been duly authorized and validly issued, are fully paid and
(except in the case of general partnership interests) non-assessable
and, except as otherwise disclosed in the Prospectus, are owned by the
Company and/or one or more subsidiaries of the Company, free and clear
of any security interest, mortgage, pledge, lien, encumbrance, claim
or equity; and the Company, and/or such subsidiaries of the Company
are the only members or general partners of the Company's limited
liability company or limited partnership subsidiaries, as applicable,
and own the entire membership or general partnership interest in each
such subsidiary free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity;
(v) To the best of such counsel's knowledge and other than
as set forth in the Prospectus as amended or supplemented, 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, if determined
adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
current or future consolidated financial position, shareholders'
equity or results of operations of the Company and its subsidiaries;
and, to the best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened
by others;
14
(vi) This Agreement and the Pricing Agreement with respect
to the Designated Securities have been duly authorized, executed and
delivered by the Company and the Operating Entities;
(vii) The Designated Securities have been duly authorized
and executed by the Company and, when duly authenticated by the
Trustee in accordance with the Indenture and delivered to the
Underwriters against payment of the consideration therefor in
accordance with the Pricing Agreement, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles, whether considered at law or in equity, and
will be entitled to the benefits of the Indenture ;
(viii) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding agreement
of the Company, enforceable against the Company in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles, whether
considered at law or in equity; and the Indenture has been duly
qualified under the Trust Indenture Act;
(ix) The issue and sale of the Designated Securities being
delivered on the date of such opinion and the compliance by the
Company and the Operating Entities with all of the provisions of the
Designated Securities, the Indenture, this Agreement and the Pricing
Agreement with respect to the Designated Securities 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, nor will such actions
result in any violation of the provisions of the Articles of
Incorporation or By-laws of the Company, Residential or Investment or
the certificate of limited partnership or limited partnership
agreement of the Operating Partnership or the operating agreement of
North Carolina or any statute or any order, rule or regulation known
to such counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of
their properties;
(x) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
Designated Securities being delivered on the date of such opinion or
the consummation by the Company or the Operating Entities of the
15
transactions contemplated by this Agreement, the Pricing Agreement or
the Indenture, except such as have been obtained under the Act and 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;
(xi) The statements set forth in the Prospectus under the
captions "Description of Our Debt Securities" and "Description of the
Notes" (or under any similar caption), insofar as they constitute a
summary of the Indenture, the Designated Securities, or any other
documents referred to therein or matters of law are accurate summaries
and fairly and correctly present the information called for with
respect to such documents and matters;
(xii) The Company is not required to be registered under the
Investment Company Act;
(xiii) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion), when they became effective or were filed
with the Commission, as the case may be, complied as to form in all
material respects with the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder; and although they do not assume any responsibility for the
accuracy, completeness or fairness of the statements therein, nothing
has come to their attention which leads them to believe that any
documents incorporated by reference in the Prospectus as amended or
supplemented (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion),
when they became effective or were so filed, as the case may be,
contained, in the case of a registration statement which became
effective under the Act, 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, in the
case of other documents which were filed under the Act or the Exchange
Act with the Commission, 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; and
(xiv) The Registration Statement and the Prospectus as
amended or supplemented and any further amendments and supplements
thereto made by the Company on or prior to the date of such opinion
(other than the financial statements and related schedules therein, as
to which such counsel need express no opinion) comply as to form in
all material respects with the requirements of the Act and the Trust
Indenture Act and the rules and regulations thereunder; if
16
applicable, the Rule 434 Prospectus complies as to form in all
material respects with the requirements of Rule 434 under the Act;
although they do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, except for those referred to
in the opinion in subsection (xi) of this Section 7(c), nothing has
come to their attention which leads them to believe that, as of its
effective date the Registration Statement or any further amendment
thereto made by the Company on or prior to the date of such opinion
(other than the financial statements and related schedules 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, as of the date of the applicable
Pricing Agreement, the Prospectus as amended or supplemented or any
further amendment or supplement thereto made by the Company on or
prior to the date of such opinion (other than the financial statements
and related schedules 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 necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading or that, as of the Time of Delivery, either the
Registration Statement or the Prospectus as amended or supplemented or
any further amendment or supplement thereto made by the Company on or
prior to the date of such opinion (other than the financial statements
and related schedules therein, as to which such counsel need express
no opinion) contains an untrue statement of a material fact or omits
to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; and they do not know of any amendment to the Registration
Statement required to be filed or of 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 as amended or supplemented or required to be described in
the Registration Statement or the Prospectus as amended or
supplemented which are not filed or incorporated by reference or
described as required;
(d) Hunton & ▇▇▇▇▇▇▇▇, counsel for the Company, shall have furnished
to the Representatives their written opinion (which shall be rendered to
the Underwriters at the request of the Company and shall so state therein),
dated the Time of Delivery for such Designated Securities, in form and
substance satisfactory to the Representatives, to the effect that the
Company has qualified to be taxed as a real estate investment trust
pursuant to Sections 856 through 860 of the Code for its most recently
ended fiscal year and for the four fiscal years immediately preceding such
year, and the Company's organization and contemplated method of operation
are such as to enable it to continue to so qualify for its current fiscal
year;
(e) On the date of the Pricing Agreement for such Designated
Securities and at the Time of Delivery for such Designated Securities, the
Underwriters shall have
17
received, a letter dated the date hereof and the Time of Delivery,
respectively, in form and substance satisfactory to the Underwriters, from
Ernst & Young LLP, independent public accountants, containing statements
and information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and
the Prospectus as amended or supplemented.
(f) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended prior to
the date of the Pricing Agreement relating to the Designated Securities any
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 as amended prior to the date of the
Pricing Agreement relating to the Designated Securities, and (ii) since
the respective dates as of which information is given in the Prospectus as
amended prior to the date of the Pricing Agreement relating to the
Designated Securities there shall not have been any change in the capital
stock, total assets or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company and
its subsidiaries, otherwise than as set forth or contemplated in the
Prospectus as amended prior to the date of the Pricing Agreement relating
to the Designated Securities, 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 as
first amended or supplemented relating to the Designated Securities;
(g) 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 or preferred stock by any
"nationally recognized statistical rating organization", as that 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 or preferred stock;
(h) 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; or (iv) the outbreak or
escalation of hostilities, the occurrence of any change in financial
markets or, the occurrence of any calamity or crisis or the declaration by
the United States of a national
18
emergency or war, if the effect of any such event specified in this Clause
(iv) in the judgment of Banc of America Securities LLC makes 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 as amended or supplemented;
(i) The Company and the Operating Entities shall have complied with
the provisions of Section 5(c) hereof with respect to the furnishing of
prospectuses on the New York business day next succeeding the date of the
applicable Pricing Agreement; and
(j) The Company and the Operating Entities 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, Residential and Investment and of the general partner of the
Operating Partnership and of the sole member of North Carolina satisfactory
to the Representatives as to the accuracy of the representations and
warranties of the Company and the Operating Entities herein at and as of
such Time of Delivery, as to the performance by the Company and the
Operating Entities of all of their obligations hereunder to be performed at
or prior to such Time of Delivery, as to the matters set forth in
subsections (a) and (f) of this Section and as to such other matters as the
Representatives may reasonably request.
8.
(a) The Company and the Operating Entities, jointly and severally,
agree to indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of either Section 15
of the Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred by any Underwriter or any such
controlling person in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement, any Preliminary
Prospectus, any preliminary prospectus supplement, the Prospectus as
amended or supplemented or any other prospectus relating to the Securities,
or any amendment or supplement to any of the foregoing, or caused by any
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or liabilities
are caused by any such untrue statement or omission or alleged untrue
statement or omission based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Representatives expressly for use therein in connection with the offering
of the Designated Securities.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Act or Section 20 of the
Exchange Act to the same extent as the foregoing
19
indemnity from the Company to such Underwriter, but only with reference to
information relating to such Underwriter furnished to the Company in
writing by such Underwriter through the Representatives in connection with
the offering of the Designated Securities expressly for use in the
Registration Statement, any Preliminary Prospectus, any preliminary
prospectus supplement, the Prospectus as amended or supplemented or any
other prospectus relating to the Designated Securities or any amendment or
supplement to any of the foregoing.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may
be sought pursuant to either paragraph (a) or (b) of this Section 8, such
person (the "indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party") in writing and
the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in
such proceeding and shall pay the fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any indemnified party
shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless
(i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to any
such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings
in the same jurisdiction, be liable for the fees and expenses of more than
one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed
as they are incurred. Such firm shall be designated in writing by Banc of
America Securities LLC, in the case of parties indemnified pursuant to
paragraph (a) above, and by the Company, in the case of parties indemnified
pursuant to paragraph (b) above. The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent,
but if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel as contemplated by
the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into
more than 30 days after receipt by such indemnifying party of the aforesaid
request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could
have been a
20
party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter
of such proceeding. The obligations of the Company and the Operating
Entities under this paragraph (c) are joint and several.
(d) To the extent the indemnification provided for in paragraph (a) or
(b) of this Section 8 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under such paragraph, in
lieu of indemnifying such indemnified party thereunder, shall contribute to
the amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and
the Operating Entities on the one hand and the Underwriters of the
Designated Securities on the other hand from the offering of the Designated
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company and the Operating Entities on the
one hand and of the Underwriters of the Designated Securities on the other
hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company
and the Operating Entities on the one hand and the Underwriters of the
Designated Securities on the other hand in connection with the offering of
the Designated Securities shall be deemed to be in the same respective
proportions as the net proceeds from the offering of such Designated
Securities (before deducting expenses) received by the Company and the
total underwriting discounts and commissions received by the Underwriters
of the Designated Securities, in each case as set forth in the table on the
cover of the Prospectus as amended or supplemented with respect to the
Designated Securities, bear to the aggregate public offering price of the
Designated Securities. The relative fault of the Company and the Operating
Entities on the one hand and the Underwriters on the other hand 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 relates to information supplied by the
Company or the Operating Entities on the one hand or by the Underwriters on
the other hand and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Underwriters' respective obligations to contribute pursuant
to this Section 8 are several in proportion to the respective principal
amounts of Designated Securities they have purchased hereunder, and not
joint. The obligations of the Company and the Operating Entities to
contribute pursuant to this Section 8 are joint and several.
(e) The Company, the Operating Entities and the Underwriters agree
that it would not be just or equitable if contribution pursuant to this
Section 8 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 that does not take account of the equitable considerations
referred to in paragraph (d) of this Section 8. The amount paid or payable
21
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, 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, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Designated Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages that
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 remedies
provided for in this Section 8 are not exclusive and shall not limit any
rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 8 and the representations, warranties and other statements of the
Company and the Operating Entities contained in this Agreement shall remain
operative and in full force and effect regardless of (i) any termination of
this Agreement, (ii) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter or the Company, its
officers or directors or any person controlling the Company or any
Operating Entity, its officers or directors (if any) or any person
controlling any of the Operating Entities and (iii) acceptance of and
payment for any of the Designated Securities.
9. For purposes of this Section 9, (i) if the applicable Pricing Agreement
provides for the Underwriters to purchase two or more separate series of
Designated Securities, then each such series is sometimes referred to as a
"Series" of Designated Securities, and (ii) if the applicable Pricing Agreement
provides for the Underwriters to purchase only a single series of Designated
Securities, then all references to any "Series" of Designated Securities shall
be deemed to mean and refer to such single series of Designated Securities.
(a) If any Underwriter shall default in its obligation to purchase the
Designated Securities of any Series (as defined in the Pricing Agreement)
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 of such Series 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 of such Series, 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 of such Series 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 of
such Series, or the Company notifies the Representatives that it has so
arranged for the purchase of such
22
Designated Securities of such Series, the Representatives or the Company
shall have the right to postpone the Time of Delivery for the Designated
Securities of such Series 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 as amended or supplemented, 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
the Designated Securities of such Series.
(b) If, after giving effect to any arrangements for the purchase of
the Designated Securities of a Series of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate principal amount of the Designated
Securities of such Series which remains unpurchased does not exceed one-
eleventh of the aggregate principal amount of the Designated Securities of
such Series, then the Company shall have the right to require each non-
defaulting Underwriter to purchase the principal amount of the Designated
Securities of such Series which such Underwriter agreed to purchase under
the Pricing Agreement relating to the Designated Securities of such Series
and, in addition, to require each non-defaulting Underwriter to purchase
its pro rata share (based on the principal amount of Designated Securities
of such Series which such Underwriter agreed to purchase under such Pricing
Agreement) of the Designated Securities of such Series 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 Series 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 of such Series which remains unpurchased exceeds one-eleventh of
the aggregate principal amount of the Designated Securities of such Series,
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 such Series of
a defaulting Underwriter or Underwriters, then the Pricing Agreement
relating to the Designated Securities of such Series shall thereupon
terminate, without liability on the part of any non-defaulting Underwriter,
the Company or the Operating Entities, except for the expenses to be borne
by the Company, the Operating Entities and the Underwriters as provided in
Section 6 hereof and the indemnity and contribution agreements in Section 8
hereof and the provisions of Section 10 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
10. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company and the Operating Entities 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
23
Section 6 and Section 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 and the Operating Entities will, jointly and severally, 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 and
the Operating Entities 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.
11. 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 or the Operating Entities shall be
delivered or sent by mail, telex or facsimile transmission to the address of the
Company set forth in the Registration Statement: Attention: Secretary; 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.
12. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company, the Operating
Entities and, to the extent provided in Section 8 hereof, the officers and
directors of the Company and each person who controls the Company, any of the
Operating Entities 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.
13. Time shall be of the essence of each Pricing Agreement. As used herein,
"business day" shall mean any day when the Commission's office in Washington,
D.C. is open for business.
14. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
15. 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
24
an original, but all such respective counterparts shall together constitute one
and the same instrument.
25
If the foregoing is in accordance with your understanding, please sign and
return to us six counterparts hereof.
Very truly yours,
United Dominion Realty Trust, Inc.
By: _____________________________________
Name:
Title:
United Dominion Realty, L.P.
By: United Dominion Realty Trust, Inc.,
its General Partner
By: _____________________________________
Name:
Title:
UDR Western Residential, Inc.
By: _____________________________________
Name:
Title:
UDRT of North Carolina, L.L.C.
By: United Dominion Realty Trust, Inc.,
its sole member
By: _____________________________________
Name:
Title:
26
ASR Investments Corporation
By: _____________________________________
Name:
Title:
Accepted as of the date hereof:
Banc of America Securities LLC
Acting severally on behalf of themselves and the several Underwriters
By: Banc of America Securities LLC
By: _____________________________________
Name:
Title:
27
Annex I
Pricing Agreement
[Names of Representative(s)]
As Representatives of the several
Underwriters named in Schedule I hereto,
[Name and Address of Representative]
______________, ____
Dear Sirs:
United Dominion Realty Trust, Inc., a Virginia corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated ______________, ____ (the "Underwriting
Agreement"), between the Company and the Operating Entities (as defined therein)
on the one hand and [names of Representatives named therein] on the other hand,
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
as amended or supplemented 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
Representative designated to act on behalf of the Representatives and on behalf
of each 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.
I-1
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, on the basis of the representations and warranties
set forth herein and in such Underwriting Agreement, 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 respective 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, 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 and the Operating Entities. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is or will be
pursuant to the authority set forth in a form of Agreement Among Underwriters,
the form of which shall be submitted to the Company for examination upon
request, but without warranty on the part of the Representatives as to the
authority of the signers thereof.
Very truly yours,
United Dominion Realty Trust, Inc.
By: ______________________________
Name:
Title:
United Dominion Realty, L.P.
By: United Dominion Realty Trust, Inc.,
its General Partner
By: ______________________________
Name:
Title:
UDR Western Residential, Inc.
By: ______________________________
Name:
Title:
I-2
UDRT of North Carolina, L.L.C.
By: United Dominion Realty Trust, Inc.,
its sole member
By: _______________________________________
Name:
Title:
ASR Investments Corporation
By: _______________________________________
Name:
Title:
Accepted as of the date hereof:
__________________________________
[Name(s) of Co-Representative(s)]
On behalf of the Underwriters
I-3
SCHEDULE I
Principal Amount
of Designated
Securities
Underwriter to be Purchased
----------- -----------------
$
-----------------
Total $
-----------------
I-4
SCHEDULE II
Title of Designated Securities:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due
Aggregate principal amount:
[$]
Price to Public:
% of the principal amount of the Designated Securities, plus accrued
interest from _________ to _________ [and accrued amortization, if any,
from _________ to _________]
Purchase Price by Underwriters:
% of the principal amount of the Designated Securities, plus accrued
interest from _________ to _________ [and accrued amortization, if any,
from _________ to _________]
Form of Designated Securities:
Specified funds for payment of purchase price:
Immediately Available Funds
Indenture:
Indenture dated _________, 199_, between the Company and _________, as
Trustee
Maturity:
Interest Rate:
[ %] [Zero Coupon] [See Floating Rate Provisions]
I-5
Interest Payment Dates:
[Months and Dates]
Redemption Provisions:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in the
amount of [$ ] or an integral multiple thereof,
___________________________ [on or after _________, at the following
redemption prices (expressed in percentages of principal amount to be
redeemed). If (redeemed on or before _________, _________%, and if)
redeemed during the 12-month period beginning ___________________________,
Year Redemption Price
and thereafter at 100% of their principal amount, together in each case
with accrued interest to the redemption date.] [on any interest payment
date falling on or after _________, _________, at the election of the
Company, at a redemption price equal to the principal amount thereof, plus
accrued interest to the date of redemption.]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund to
retire [$ ] principal amount of Designated Securities on
_________ in each of the years _________ through _________ at 100% of their
principal amount plus accrued interest] [, together with [cumulative]
[noncumulative] redemptions at the option of the Company to retire an
additional [$ ] principal amount of Designated Securities in the
years through _________ at 100% of their principal amount plus accrued
interest].
Securities are extendable Debt Securities, insert--
Extendable provisions:
Securities are repayble on _________, [insert date and years], at the
option of the holder, at their principal amount with accrued interest.
Initial annual interest rate will _________%, and thereafter annual
interest rate will be adjusted on _________, and
I-6
_________ to a rate not less than _________% of the effective annual
interest rate on U.S. Treasury obligations with _________-year maturities
as of the (insert date 15 days prior to maturity date] prior to such
[insert maturity date].]
Securities are Floating Rate debt Securities, insert--
Floating rate provisions:
Initial annual interest rate will be _________% through [and thereafter
will be adjusted [monthly] [on each _________, _________, _________ and] [
to an annual rate of _________% above the average rate for _____ year
[month] [securities] [certificates of deposit] issued by _________ and
[insert names of banks].] [and the annual interest rate [thereafter] [from
_________ through _______] will be the interest yield equivalent of the
weekly average per annum market discount rate for _________-month Treasury
bills plus ___% of Interest Differential (the excess, if any, of (i) then
current weekly average per annum secondary market yield for _________ -
month certificates of deposit over (ii) then current interest yield
equivalent of the weekly average per annum market discount rate for
_________ -month Treasury bills); [from and thereafter the rate will be the
then current interest yield equivalent plus _________% of Interest
Differential].]
Defeasance provisions:
Time of Delivery:
Closing Location for Delivery of Securities:
Names and addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
[Other Terms]*:
* A description of particular tax accounting or other unusual features
(such as the addition of event risk provisions) of the Securities should be set
forth, or referenced to an attached and accompanying description, if necessary
to ensure agreement as to the terms of the Securities to be purchased and sold.
Such a description might appropriately be in the form in which such
features shall be described in the Prospectus Supplement for the offering
I-7
Exhibit 1(a)
Pricing Agreement
-----------------
Banc of America Securities LLC
First Union Securities, Inc.
Chase Securities Inc.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
c/o Banc of America Securities LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
February 29, 2000
Ladies and Gentlemen:
United Dominion Realty Trust, Inc., a Virginia corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated February 29, 2000 (the "Underwriting Agreement"),
between the Company and the Operating Entities (as defined therein) on the one
hand and Banc of America Securities LLC, First Union Securities, Inc., Chase
Securities Inc., ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation and ▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, on the other hand, 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 as amended or supplemented 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 Representative designated to
act on behalf of the Representatives and on behalf of each 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, on the basis of the representations and warranties
set forth herein and in such Underwriting Agreement, 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 respective 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, 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 and the Operating Entities. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is or will be
pursuant to the authority set forth in a form of Agreement among Underwriters,
the form of which shall be submitted to the Company for examination upon
request, but without warranty on the part of the Representatives as to the
authority of the signers thereof.
Very truly yours,
United Dominion Realty Trust, Inc.
By:________________________________
Name:
Title:
United Dominion Realty, L.P.
By: United Dominion Realty Trust, Inc., its
General Partner
By:________________________________
Name:
Title:
UDR Western Residential, Inc.
By:________________________________
Name:
Title:
UDRT of North Carolina, L.L.C.
By: United Dominion Realty Trust, Inc., its
sole member
By:________________________________
Name:
Title:
ASR Investments Corporation
By:________________________________
Name:
Title:
Accepted as of the date hereof:
Banc of America Securities LLC
First Union Securities, Inc.
Chase Securities Inc.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
Acting severally on behalf of themselves and the several Underwriters
By: Banc of America Securities LLC
By:_______________________________
Name:
Title:
SCHEDULE I
Principal Amount of
Designated
Securities
Underwriter to be Purchased
----------- -------------------
Banc of America Securities LLC $ 70,000,000
First Union Securities, Inc. 20,000,000
Chase Securities Inc. 3,334,000
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation 3,333,000
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 3,333,000
------------
Total $100,000,000
============
SCHEDULE II
Title of Designated Securities:
8.625% Notes Due 2003 (the "Notes")
Aggregate Principal Amount of Designated Securities:
$100,000,000
Initial Public Offering Price:
99.876% of the principal amount of the Notes, plus accrued interest, if
any, from March 3, 2000.
Purchase Price by Underwriters:
99.526% of the principal amount of the Notes, plus accrued interest, if
any, from March 3, 2000 (no accrued interest will be payable by the
Underwriters in the case of Notes purchased by the Underwriters on March 3,
2000).
Form of Designated Securities:
Book-entry form represented by one or more global securities deposited with
The Depository Trust Company and registered in the name of its nominee.
Specified funds for payment of purchase price:
Immediately available funds.
Indenture:
Indenture dated November 1, 1995, between the Company and First Union
National Bank (formerly known as First Union National Bank of Virginia), as
Trustee
Maturity:
March 15, 2003
Interest Rate:
8.625% per annum
Interest Payment Dates:
March 15 and September 15, commencing September 15, 2000.
Regular Record Dates:
March 1 and September 1
Redemption Provisions:
Not redeemable prior to maturity.
Sinking Fund Provisions:
No sinking fund provisions.
Defeasance provisions:
The provisions of Article 14 of the Indenture relating to defeasance and
covenant defeasance will apply to the Notes.
Time of Delivery:
10 a.m., New York time, on March 3, 2000.
Closing Location for Delivery of Designated Securities:
Offices of ▇▇▇▇▇ & ▇▇▇▇ llp, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇▇.
Names and addresses of Representatives:
Designated Representative:
Banc of America Securities LLC
Address for Notices, etc.:
Banc of America Securities LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
