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Exhibit 1.1
CAMDEN PROPERTY TRUST
Debt Securities
Form of
Underwriting Agreement
$50,000,000 7% Notes due 2006
and
$150,000,000 7.625% Notes due 2011
February 7, 2001
BANC OF AMERICA SECURITIES LLC
CHASE SECURITIES INC.
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
ABN AMRO INCORPORATED
BANC ONE CAPITAL MARKETS, INC.
COMMERZBANK CAPITAL MARKETS CORP.
CREDIT SUISSE FIRST BOSTON CORPORATION
FIRST UNION SECURITIES, INC.
WACHOVIA SECURITIES, INC.
c/o Chase Securities Inc.
270 Park Avenue
New York, NY 10017-2070
Ladies and Gentlemen:
Camden Property Trust, a Texas real estate investment trust (the
"Company"), proposes to issue and sell to the underwriters named in Schedule I
hereto (the "Underwriters") the respective principal amounts of its debt
securities identified in Schedule I hereto (collectively, the "Securities"), to
be issued under the indenture specified in Schedule I hereto (including the
Supplemental Indenture referred to in Schedule I, the "Indenture") between the
Company and the Trustee identified in such Schedule (the "Trustee").
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
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Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement (the file number of which is set forth in Schedule I hereto) on Form
S-3, relating to certain securities (the "Shelf Securities") to be issued from
time to time by the Company. The Company also has filed with, or proposes to
file with, the Commission pursuant to Rule 424 under the Securities Act a
prospectus supplement specifically relating to the Securities. The registration
statement as amended to the date of this Agreement is hereinafter referred to as
the "Registration Statement" and the related prospectus covering the Shelf
Securities in the form first used to confirm sales of the Securities is
hereinafter referred to as the "Base Prospectus." The Base Prospectus as
supplemented by the prospectus supplement specifically relating to the
Securities in the form first used to confirm sales of the Securities is
hereinafter referred to as the "Prospectus." Any reference in this Agreement to
the Registration Statement, the Base Prospectus, any preliminary form of
Prospectus (a "preliminary prospectus") previously filed with the Commission
pursuant to Rule 424 or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act which were filed under the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") on or before the date of this Agreement or
the date of the Base Prospectus, any preliminary prospectus or the Prospectus,
as the case may be; and any reference to "amend," "amendment" or "supplement"
with respect to the Registration Statement, the Base Prospectus, any preliminary
prospectus or the Prospectus shall be deemed to refer to and include any filing
of documents under, or any documents filed under, the Exchange Act after the
date of this Agreement, or the date of the Base Prospectus, any preliminary
prospectus or the Prospectus, as the case may be, which are deemed to be
incorporated by reference therein.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities to the several
Underwriters as hereinafter provided, and each Underwriter, on the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees to purchase, severally and not jointly, from the
Company the respective principal amounts of Securities at the respective
purchase prices set forth in Schedule I hereto plus accrued interest, if any,
from the date specified in Schedule I hereto to the date of payment and
delivery.
2. The Company understands that the Underwriters intend (i) to make a
public offering of the Securities and (ii) initially to offer the Securities
upon the terms set forth in the Prospectus.
3. Payment for the Securities shall be made to the Company or to its order
in immediately available funds on the date and at the time and place set forth
in Schedule I hereto (or at such other time and place on the same or such other
date, not later than the third Business Day thereafter, as the Underwriters and
the Company may agree in writing). Such payment will be made upon delivery to
such Underwriters of the Securities registered in such names and in such
denominations as the Underwriters shall request not less than one full Business
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Day prior to the date of delivery, with any transfer taxes payable in connection
with transfer to the Underwriters duly paid by the Company. As used herein, the
term "Business Day" means any day other than a day on which banks are permitted
or required to be closed in New York City. The time and date of such payment and
delivery with respect to the Securities are referred to herein as the Closing
Date. The certificates for the Securities will be made available for inspection
and packaging by the Underwriters by 1:00 P.M. on the Business Day prior to the
Closing Date at such place in New York City as the Underwriters and the Company
shall agree.
4. The Company represents and warrants to each Underwriter as of the date
hereof and as of the Closing Date that:
(a) the Registration Statement has been declared effective by the
Commission under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge
of the Company, threatened by the Commission; and the Registration
Statement and Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) comply, or
will comply, as the case may be, in all material respects with the
Securities Act and the Trust Indenture Act of 1939, as amended, and
the rules and regulations of the Commission thereunder (collectively,
the "Trust Indenture Act"); and the Registration Statement does not
and will not, as of its applicable effective date and any amendment
thereto and at the date hereof and at the Closing Date, contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, not misleading, and the Prospectus, as amended or
supplemented at the Closing Date and any amendment or supplement to
the Prospectus thereafter, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; except that
the foregoing representations and warranties shall not apply to (i)
that part of the Registration Statement which constitutes the
Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee, and (ii) statements or omissions in the
Registration Statement or the Prospectus made in reliance upon and in
conformity with information relating to any Underwriter furnished to
the Company in writing by such Underwriter expressly for use therein,
and the Company acknowledges (for the purposes of this paragraph (a)
and anywhere else in this Agreement where a reference appears to
writings furnished by the Underwriters to the Company) that the
statements set forth in the second sentence of the third paragraph and
the fourth and sixth paragraphs under the heading "Underwriting" in
the Prospectus constitute the only information relating to any
Underwriter furnished in writing to the Company by the Underwriters
specifically for inclusion in the Registration Statement;
(b) the documents incorporated by reference in the Prospectus,
when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act, and none of such
documents 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; and any further documents so filed and incorporated by
reference in the Prospectus, when such documents are filed with the
Commission will conform in all material respects to the requirements
of the Exchange Act, as applicable, and will not contain an untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
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circumstances under which they were made, not misleading; and there
are no contracts or documents which are required to be described in
the Registration Statement, the Prospectus or the documents
incorporated by reference therein or to be filed as exhibits thereto
which have not been so described and filed as required;
(c) the financial statements and the related notes thereto,
included or incorporated by reference in the Registration Statement
and the Prospectus, present fairly the financial position of the
Company as of the dates indicated and the results of its operations
and the changes in its cash flows for the periods specified; the
foregoing financial statements have been prepared in conformity with
generally accepted accounting principles ("GAAP") applied on a
consistent basis, and the supporting schedules included or
incorporated by reference in the Registration Statement or the
Prospectus present fairly the information required to be stated
therein; the summary financial and statistical data included or
incorporated by reference in the Registration Statement or the
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with the financial statements presented
therein; no other financial statements (or schedules) of the Company,
any predecessor of the Company or any other entity or business are
required by the Securities Act to be included in the Registration
Statement or the Prospectus; any historical summaries of revenue and
certain operating expenses included or incorporated by reference in
the Registration Statement and the Prospectus present fairly the
revenue and those operating expenses included in such summaries of the
properties related thereto for the periods specified in conformity
with GAAP; and pro forma financial statements of the Company and its
Subsidiaries and the related notes thereto included in the
Registration Statement and the Prospectus, if any, 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;
(d) since the respective dates as of which information is given
in the Registration Statement and the Prospectus, there has not been
any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general
affairs, business, prospects, management, properties, financial
position, shareholders' equity or results of operations of the Company
or any of its Subsidiaries (as hereinafter defined); and except as set
forth or contemplated in the Prospectus neither the Company nor any of
its Subsidiaries has incurred any liabilities or obligations, direct
or contingent, or entered into any transaction or agreement (whether
or not in the ordinary course of business) material to the Company and
its Subsidiaries as a whole;
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(e) the Company has been duly formed and is validly existing
as a real estate investment trust with transferable shares of
beneficial interest under the laws of the State of Texas, with power
and authority to own or lease its properties and conduct its business
as described in the Prospectus, and is qualified for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification, other than where the
failure to be so qualified or 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 taken as a whole; except for investments in securities
as described in the Registration Statement or Prospectus, the Company
has no equity or other interest in, or rights to acquire, an equity or
other interest in any corporation, partnership, trust, joint venture or
other entity; the subsidiary entities of the Company identified on
Schedule II hereto (the "Subsidiaries") are all of the Company's
Subsidiaries, have full power and authority to conduct their business
as described in the Registration Statement and the Prospectus, have
been duly organized and are validly existing as corporations, limited
partnerships or limited liability companies, as the case may be, in
good standing under the laws of their states of organization, and have
been duly qualified as foreign corporations, limited partnerships or
limited liability companies, as the case may be, for the transaction of
business and are in good standing under the laws of each other
jurisdiction in which they own or lease properties, or conduct any
business, so as to require such qualification, other than where the
failure to be so qualified or in good standing would not have a
material adverse effect on the Company and its Subsidiaries taken as a
whole; except for investments in securities as described in the
Registration Statement or Prospectus, or ownership of interests of
lower tier Subsidiaries, the Subsidiaries have no equity or other
interest in, or rights to acquire, an equity or other interest in any
corporation, partnership, trust, joint venture or other entity; the
Subsidiaries of the Company that are "significant subsidiaries" (as
defined in Rule 1-02(w) of Regulation S-X) are identified on Schedule
II hereto and complete and correct copies of the charter documents and
the by-laws, if any, of such Subsidiaries and all amendments thereto
have been previously made available or delivered to the Underwriters,
and no changes therein will have been made subsequent to the date
hereof and prior to the Closing Date; all of the issued and outstanding
capital stock of each Subsidiary that is a corporation or similar
entity has been duly authorized and validly issued, is fully paid and
nonassessable and, except as otherwise indicated on Schedule II hereto,
is owned by the Company, directly or through Subsidiaries, free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or restriction;
(f) the Company has full power and authority to enter into
this Agreement and the Indenture and to issue, offer and sell the
Securities as contemplated by this Agreement; this Agreement and the
Indenture have been duly authorized, executed and delivered by the
Company and constitute the valid and legally binding obligations of the
Company enforceable in accordance with their terms, except that the
enforceability thereof may be limited by or subject to (i) bankruptcy,
reorganization, insolvency, fraudulent conveyance, moratorium or other
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similar laws now or hereafter existing which affect the rights and
remedies of creditors generally and (ii) equitable principles of
general applicability, and except as rights to indemnity and
contribution hereunder may be limited by applicable law;
(g) the Securities have been duly authorized, and, when
issued, authenticated and delivered pursuant to this Agreement and the
Indenture will have been duly and validly executed, authenticated,
issued and delivered and will constitute valid and binding obligations
of the Company entitled to the benefits provided by the Indenture and
enforceable in accordance with their terms, except that the
enforceability thereof may be limited by or subject to (i) bankruptcy,
reorganization, insolvency, fraudulent conveyance, moratorium or other
similar laws now or hereafter existing which affect the rights and
remedies of creditors generally and (ii) equitable principles of
general applicability, and except as rights to indemnity and
contribution hereunder may be limited by applicable law; the Indenture
has been duly authorized and has been duly qualified under the Trust
Indenture Act, has been duly and validly executed and delivered by the
Company and the Trustee, and constitutes a valid and binding instrument
enforceable in accordance with its terms; and the Securities and the
Indenture will conform to the statements relating thereto contained in
the Prospectus;
(h) neither the Company nor the Subsidiaries are, nor with the
giving of notice or lapse of time or both would be, in violation of or
in default under, their respective Declaration of Trust, Articles of
Incorporation, By-Laws, limited partnership or limited liability
company agreement or any indenture, mortgage, deed of trust, loan
agreement or other agreement or other instrument or obligation to
which the Company or any Subsidiary is a party or by which they or any
of their properties are bound, except for violations and defaults
which individually and in the aggregate are not material to the
Company or to the holders of the Securities; the issue and sale of the
Securities and the performance by the Company of all of the provisions
of its obligations under the Securities, the Indenture and this
Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument to which the Company or any Subsidiary is a
party or by which the Company or any Subsidiary is bound or to which
any of the property or assets of the Company or any Subsidiary is
subject, nor will any such action result in any violation of the
provisions of the Declaration of Trust or the By-Laws of the Company
or any applicable law or statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the
Company or any of its 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
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and sale of the Securities or the consummation by the Company of the
transactions contemplated by this Agreement or the Indenture, except
such consents, approvals, authorizations, registrations or
qualifications as have been obtained under the Securities Act, the
Trust Indenture Act and as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the
Securities by the Underwriters;
(i) other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened to which the Company or any
Subsidiary is or may be a party or to which any property of the
Company or any Subsidiary is or may be the subject which, if
determined adversely to the Company, could individually or in the
aggregate reasonably be expected to have a material adverse effect on
the general affairs, business, prospects, management, properties,
financial position, shareholders' equity or results of operations of
the Company and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others; and there are no contracts or other documents
of a character required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration Statement or
the Prospectus which are not filed or described as required;
(j) the Company and the Subsidiaries have indefeasible title to
all of the real properties and assets reflected in the financial
statements (or as described in the Registration Statement) hereinabove
described, subject to no lien, mortgage, pledge, charge or encumbrance
of any kind except those reflected in such financial statements (or as
described in the Registration Statement) or which are not material in
amount and which do not materially affect the value of such property
or materially interfere with the use made or proposed to be made of
such property by the Company or any of the Subsidiaries; the Company
and the Subsidiaries occupy their leased properties under valid and
binding leases conforming to the description thereof set forth in the
Registration Statement;
(k) the Company has filed all Federal, State and foreign income
tax returns which have been required to be filed and has paid all
taxes indicated by said returns and all assessments received by it to
the extent that such taxes have become due and are not being contested
in good faith;
(1) the Company and the Subsidiaries hold all material licenses,
certificates and permits from governmental authorities which are
necessary to the conduct of their business;
(m) Deloitte & Touche LLP, who have certified certain of the
financial statements filed with the Commission as part of, or
incorporated by reference in, the Registration Statement, are
independent public accountants as required by the Securities Act;
(n) the Company has never been, is not now, and immediately after
the sale of the Securities under this Agreement will not be, an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended; the Company is organized, and has operated,
operates and will continue to operate in a manner so as to qualify as
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a "real estate investment trust" (a "REIT") under Sections 856 through
860 of the Internal Revenue Code of 1986, as amended, and the
Company's present and contemplated operations, assets and income
continue to meet such requirements;
(o) the conditions for the use of a registration statement 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
transactions contemplated herein;
(p) with respect to the properties of the Company described in
the Prospectus or reflected in the Company's consolidated financial
statements included or incorporated by reference therein (the
"Properties"), the Company and its Subsidiaries (i) are in compliance
with any and all applicable foreign, Federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have obtained all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii)
are in compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with
Environmental Laws, failure to obtain required permits, licenses or
other approvals or failure to comply with the terms and conditions of
such permits, licenses or approvals are otherwise disclosed in the
Prospectus or would not, singly or in the aggregate, have a material
adverse effect on the condition (financial or other), business
(affairs or other), prospects, earnings, net worth or results of
operation of the Company and the Subsidiaries taken as a whole; and
(i) none of the Company or the Subsidiaries has at any time,
and, to the knowledge of the Company, no other party has at any
time, handled, buried, stored, retained, refined, transported,
processed, manufactured, generated, produced, spilled, allowed to
seep, leak, escape or leach, or be pumped, poured, emitted,
emptied, discharged, injected, dumped, transferred or otherwise
disposed of or dealt with, Hazardous Materials (as hereinafter
defined) on, to or from the Properties, other than any such
action taken in compliance with all applicable Environmental Laws
or by tenants in connection with the ordinary use of residential
properties owned by the Company or the Subsidiaries; the Company
does not intend to use the Properties or any subsequently
acquired properties described in the Prospectus for the purpose
of handling, burying, storing, retaining, refining, transporting,
processing, manufacturing, generating, producing, spilling,
seeping, leaking, escaping, leaching, pumping, pouring, emitting,
emptying, discharging, injecting, dumping, transferring or
otherwise disposing of or dealing with Hazardous Materials other
than in compliance with all applicable Environmental Laws; and
(ii) the Company does not know of any seepage, leak, escape,
leaching, discharge, injection, release, emission, spill,
pumping, pouring, emptying or dumping of Hazardous Materials into
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waters on or adjacent to the Properties or onto lands from which
such hazardous or toxic waste of substances might seep, flow or
drain into such waters; and
(iii) neither the Company nor any of the Subsidiaries has
received notice of, or has knowledge of any occurrence or
circumstance which, with notice or passage of time or both, would
give rise to, any claim under or pursuant to any Environmental
Law pertaining to Hazardous Material or toxic waste or substances
on or originating from the Properties or arising out of the
conduct of any such party, including, without limitation,
pursuant to any Environmental Law;
as used herein, "Hazardous Material" shall include, without
limitation, any flammable explosives, radioactive materials,
hazardous materials, hazardous wastes, hazardous or toxic
substances, or related materials, asbestos or any material as
defined by any Federal, state or local environmental law,
ordinance, rule, or regulation including, without limitation,
Environmental Laws, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (42 U.S.C.
Section 9601, et seq.) ("CERCLA"), the Hazardous Materials
Transportation Act, as amended (49 U.S.C. Section 1801, et seq.),
the Resource Conservation and Recovery Act, as amended (42 U.S.C.
Section 9601, et seq.), and in the regulations adopted and
publications promulgated pursuant to each of the foregoing or by
any Federal, state or local governmental authority having or
claiming jurisdiction over the Properties as described in the
Prospectus.
(q) the Company has complied with all provisions of Article 6138A
of the Texas Civil Statutes;
(r) none of the assets of the Company or the Subsidiaries
constitute, nor will such assets, as of the Closing Date, constitute,
"plan assets" under the Employee Retirement Income Security Act of
1974, as amended ("ERISA");
(s) the Company has not distributed and, prior to the later to
occur of (i) the Closing Date and (ii) completion of the distribution
of the Securities, will not distribute any offering material in
connection with the offering and sale of the Securities other than the
Registration Statement, the Prospectus or other materials, if any,
permitted by the Securities Act;
(t) the Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain
accountability for assets; (iii) access to financial and corporate
books and records is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded
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accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences;
(u) all liens, charges, encumbrances, claims or restrictions on
or affecting the Properties which are required to be disclosed in the
Prospectus are disclosed therein; to the knowledge of the Company, (i)
no lessee of any portion of any of the Properties is in default under
any of the leases governing such properties and there is no event
which, but for the passage of time or the giving of notice, or both,
would constitute a default under any of such leases, except such
defaults that would not have a material adverse effect on the
condition (financial or other), business, prospects, net worth or
results of operations of the Company and the Subsidiaries taken as a
whole; (ii) the intended use and occupancy of each of the Properties
complies with all applicable codes and zoning laws and regulations, if
any, except for such failures to comply which would not individually
or in the aggregate have a material adverse effect on the condition
(financial or other), business prospects, net worth or results of
operations of the Company and the Subsidiaries taken as a whole; and
(iii) there is no pending or, to the best knowledge of the Company,
threatened condemnation, zoning change, environmental or other
proceeding or action that will in any material respect affect the size
of, use of, improvements on, construction on, or access to the
Properties, except such proceedings or actions that would not have a
material adverse effect on the condition (financial or other),
business, prospects, net worth or results of operations of the Company
and the Subsidiaries taken as a whole;
(v) the Company, has and will maintain, property and casualty
insurance in favor of the Company and the Subsidiaries, as the case
may be, with respect to each of the Properties, in an amount and on
such terms as is reasonable and customary for businesses of the type
proposed to be conducted by the Company and the Subsidiaries; the
Company has not received from any insurance company written notice of
any material defects or deficiencies affecting the insurability of any
such Properties; and
(w) any certificate signed by any officer of the Company and
delivered to the Underwriters or to counsel for the Underwriters in
connection with the offering of the Securities shall be deemed a
representation and warranty by the Company to the Underwriters as to
the matters covered thereby on the date of such certificate.
5. The Company covenants and agrees with the several Underwriters as
follows:
(a) to file the Prospectus (but only if the Underwriters have not
reasonably objected thereto by notice to the Company after having been
furnished a copy in reasonable time prior to filing) pursuant to Rule
424 under the Securities Act not later than the Commission's close of
business on the second Business Day following the date of
determination of the offering price of the Securities;
(b) to deliver to each Underwriter and counsel for the
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Underwriters, at the expense of the Company, a copy of the signed
Registration Statement (as originally filed) and each amendment
thereto, in each case including exhibits and, upon request, documents
incorporated by reference therein and, during the period mentioned in
paragraph (e) below, as many copies of the Prospectus (including all
amendments and supplements thereto) and documents incorporated by
reference therein as the Underwriters may reasonably request, when
filed with the Commission; and that each such Prospectus will, at the
time of such delivery, be identical to any electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to
the extent permitted by Regulation S-T;
(c) from the date hereof and during such period after the first
date of the public offering of the Securities that, in the opinion of
counsel for the Underwriters, a prospectus relating to the Securities
is required by law to be delivered in connection with sales by an
Underwriter or a dealer, to furnish to the Underwriters a copy of any
proposed amendment or supplement to the Registration Statement or the
Prospectus, for the Underwriters' review, and not to file any such
proposed amendment or supplement to which the Underwriters reasonably
object;
(d) to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required
in connection with the offering or sale of the Securities, and during
such same period, to advise the Underwriters promptly, and to confirm
such advice in writing, (i) when any amendment to the Registration
Statement shall have become effective, (ii) of any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for any additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation or threatening of any proceeding for that purpose, and (iv)
of the receipt by the Company of any notification with respect to any
suspension of the qualification of the Securities for offer and sale
in any jurisdiction or the initiation or threatening of any proceeding
for such purpose; and to use its best efforts to prevent the issuance
of any such stop order or notification and, if issued, to obtain as
soon as possible the withdrawal thereof;
(e) if, during such period after the first date of the public
offering of the Securities, in the opinion of counsel for the
Underwriters, a prospectus relating to the Securities is required by
law to be delivered in connection with sales by an Underwriter or a
dealer, any event shall occur as a result of which it is necessary to
amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus to comply with law, forthwith to
prepare and, subject to Section 5(c), furnish, at the expense of the
Company, to the Underwriters and to the dealers (whose names and
addresses the Underwriters will furnish to the Company) to which
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Securities may have been sold by the Underwriters and to any other
dealers upon request, such amendments or supplements to the Prospectus
as may be necessary so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances
when the Prospectus is delivered to a purchaser, be misleading or so
that the Prospectus will comply with law;
(f) to endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the
Underwriters shall reasonably request and to continue such
qualification in effect so long as reasonably required for
distribution of the Securities and to pay all fees and expenses
(including fees and disbursements of counsel to the Underwriters)
reasonably incurred in connection with such qualification and in
connection with the determination of the eligibility of the Securities
for investment under the laws of such jurisdictions as the
Underwriters may designate; provided that the Company shall not be
required to file a general consent to service of process in any
jurisdiction;
(g) to make generally available to its security holders and to
the Underwriters as soon as practicable but not later than 15 months
after the effective date of the Registration Statement (as defined in
Rule 158(c)) an earnings statement covering a period of at least
twelve months beginning with the first fiscal quarter of the Company
occurring after the effective date of the Registration Statement,
which shall satisfy the provisions of Section 11(a) of the Securities
Act and Rule 158 of the Commission promulgated thereunder;
(h) so long as the Securities are outstanding, to furnish to the
Underwriters copies of all reports or other communications (financial
or other) furnished to holders of Securities, and copies of any
reports and financial statements furnished to or filed with the
Commission or any national securities exchange;
(i) during the period beginning on the date hereof and continuing
to and including the Business Day following the Closing Date, not to
offer, sell, contract to sell or otherwise dispose of any debt
securities of or guaranteed by the Company which are substantially
similar to the Securities without the Underwriters' prior written
consent; and
(j) to pay all costs and expenses incident to the performance of
its obligations hereunder, including without limiting the generality
of the foregoing, all costs and expenses (i) incident to the
preparation, issuance, execution, authentication and delivery of the
Securities, including any expenses of the Trustee, (ii) incident to
the preparation, printing and filing under the Securities Act of the
Registration Statement, the Prospectus and any preliminary prospectus
(including in each case all exhibits, amendments and supplements
thereto), (iii) incurred in connection with the registration or
qualification and determination of eligibility for investment of the
Securities under the laws of such jurisdictions as the Underwriters
may designate (including reasonable fees of counsel for the
Underwriters and their disbursements), (iv) related to any filing with
National Association of Securities Dealers, Inc., (v) in connection
with the printing (including word processing and duplication costs)
and delivery of this Agreement, the Indenture, the Preliminary and
17
Supplemental Blue Sky Memoranda and any Legal Investment Survey and
the furnishing to the Underwriters and dealers of copies of the
Registration Statement and the Prospectus, including mailing and
shipping, as herein provided and (vi) payable to rating agencies in
connection with the rating of the Securities; except as provided in
clause (iii) above or in Section 7 or in Section 10 hereof, the
Company shall not be obligated to pay the fees of counsel for the
Underwriters and their disbursements.
6. The obligations of the several Underwriters hereunder shall be
subject to the following conditions:
(a) the representations and warranties of the Company contained
herein are true and correct on and as of the Closing Date as if made
on and as of the Closing Date and the Company shall have complied with
all agreements and all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date;
(b) the Prospectus shall have been filed with the Commission
pursuant to Rule 424 within the applicable time period prescribed for
such filing by the rules and regulations under the Securities Act; no
stop order suspending the effectiveness of the Registration Statement
shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to the Underwriters' satisfaction;
(c) subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have occurred any
downgrading, nor shall any notice have been given of (i) any intended
or potential downgrading or (ii) any review or possible change that
indicates anything other than a stable outlook, in the rating accorded
any securities of or guaranteed by the Company by any "nationally
recognized statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act; and the
Securities shall in no event be rated less than BBB- by Standard and
Poor's Ratings Services, BBB- by Fitch, Inc. and Baa3 by Moody's
Investors Service, Inc.
(d) since the respective dates as of which information is given
in the Prospectus there shall not have been any material adverse
change or any development involving a material adverse change, in or
affecting the general affairs, business, prospects, management,
properties, financial position, shareholders' equity or results of
operations of the Company and its Subsidiaries, taken as a whole, the
effect of which in the judgment of the Underwriters makes it
impracticable or inadvisable to proceed with the public offering or
the delivery of the Securities on the terms and in the manner
contemplated in the Prospectus;
(e) the Underwriters shall have received on and as of the Closing
18
Date a certificate satisfactory to the Underwriters, of the President
or the Chief Executive Officer and the Chief Financial Officer, or
such other senior executive officer or officers of the Company as are
satisfactory to the Underwriters, to the effect set forth in
subsections (a) through (c) of this Section and to the further effect
that there has not occurred any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, business, prospects, management,
properties, financial position, shareholders' equity or results of
operations of the Company and its Subsidiaries taken as a whole from
that set forth or contemplated in the Registration Statement;
(f) Locke Liddell & Sapp LLP, counsel for the Company, shall have
furnished to the Underwriters its written opinion, dated the Closing
Date, in form and substance satisfactory to the Underwriters, to the
effect that:
(i) the Company has been duly organized and is validly
existing as a real estate investment trust under the laws of the
State of Texas, with power and authority to own its properties
and conduct its business as described in the Prospectus as then
amended or supplemented;
(ii) the Company is qualified for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts
any business, so as to require such qualification, other than
where the failure to be so qualified or 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 taken as a whole;
(iii) the Subsidiaries have been duly organized and are
validly existing as corporations, limited partnerships or limited
liability companies, as the case may be, in good standing under
the laws of their jurisdictions of organization, with power and
authority to own their properties and conduct their business as
described in the Prospectus as amended or supplemented; except as
disclosed in the Registration Statement or the Prospectus, the
Company owns no capital stock or other beneficial interest in any
corporation, partnership, trust, joint venture or other business
entity; and except as otherwise stated in the Registration
Statement and the Prospectus, all of the issued and outstanding
capital stock or other ownership interests of each Subsidiary
that is a corporation or similar entity have been duly authorized
and are validly issued, are fully paid and non-assessable and, to
the best of the knowledge of such counsel, are owned by the
Company, directly or through Subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance or claim;
(iv) the Subsidiaries have been duly qualified as foreign
corporations for the transaction of business and are in good
19
standing under the laws of each other jurisdiction in which they
own or lease properties, or conduct any business, so as to
require such qualification, other than where the failure to be so
qualified or in good standing would not have a material adverse
effect on the Company and its Subsidiaries taken as a whole;
(v) other than as set forth or contemplated in the
Prospectus, there are no legal or governmental proceedings
pending or, to the best of such counsel's knowledge, threatened
to which the Company or any of its Subsidiaries is or may be a
party or to which any property of the Company or any of its
Subsidiaries is or may be the subject which, if determined
adversely to the Company or such Subsidiary, could individually
or in the aggregate reasonably be expected to have a material
adverse effect on the general affairs, business, prospects,
management, properties, financial position, shareholders' equity
or results of operations of the Company and its Subsidiaries
taken as a whole; to the best of such counsel's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others; and such counsel does not
know of any contracts or other documents of a character required
to be filed as an exhibit to the Registration Statement or
required to be described in the Registration Statement or the
Prospectus which are not filed or incorporated by reference from
another filing with the Commission or described as required;
(vi) this Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of
the Company on the date hereof, except as rights to indemnity and
contribution hereunder may be limited by applicable law;
(vii) the Securities have been duly authorized, and when
executed and authenticated in accordance with the terms of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will constitute
valid and binding obligations of the Company entitled to the
benefits provided by the Indenture, enforceable in accordance
with their terms, except that the enforceability thereof may be
limited by or be subject to (a) bankruptcy, reorganization,
insolvency, fraudulent conveyance, moratorium or other similar
laws now or hereafter existing which affect the rights and
remedies of creditors generally and (b) equitable principles of
general applicability;
(viii) the Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding
instrument of the Company enforceable in accordance with its
terms, except that the enforceability thereof may be limited by
or be subject to (a) bankruptcy, reorganization, insolvency,
fraudulent conveyance, moratorium or other similar laws now or
hereafter existing which affect the rights and remedies of
creditors generally and (b) equitable principles of general
applicability; and the Indenture has been duly qualified under
the Trust Indenture Act;
20
(ix) to the best of such counsel's knowledge, neither the
Company nor the Subsidiaries are, nor with the giving of notice
or lapse of time or both would be, in violation of or in default
under, their respective Declarations of Trust, Articles of
Incorporation, By-Laws or limited partnership or limited
liability company agreement or any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to
such counsel to which the Company or any of the Subsidiaries is a
party or by which they or any of their respective properties are
bound, except for violations and defaults which individually and
in the aggregate are not material to the Company or to the
holders of the Securities; the issue and sale of the Securities
and the performance by the Company of its obligations under the
Securities, the Indenture and this Agreement and the consummation
of the transactions herein and therein contemplated will not
conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other material
agreement or instrument known to such counsel to which the
Company or any Subsidiary is a party or by which the Company or
any Subsidiary is bound or to which any of the property or assets
of the Company or any Subsidiary is subject, nor will any such
action result in any violation of the provisions of the
Declaration of Trust or the By-Laws of the Company or any
applicable law or statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company or any of its properties;
(x) the Company has authorized and outstanding shares of
beneficial interest as set forth under the caption
"Capitalization" in the Prospectus;
(xi) no consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body is required for the issue and sale of
the Securities or the consummation of the other transactions
contemplated by this Agreement or the Indenture, except such
consents, approvals, authorizations, registrations or
qualifications as have been obtained under the Securities Act and
the Trust Indenture Act and as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters;
(xii) the statements in the Base Prospectus under the
captions "Description of Capital Shares," "Description of
Warrants," and "Description of Debt Securities," and the
statements in the Prospectus under the caption "Description of
the Notes," and other statements in the Prospectus and each
document incorporated by reference from the Company's Annual
Report on Form 10-K for the year ended December 31, 1999 and in
the Registration Statement insofar as such statements constitute
21
a summary of the legal matters, documents or proceedings referred
to therein, in each case fairly present the information called
for with respect to such legal matters, documents or proceedings;
the descriptions in the Registration Statement and Prospectus of
contracts and other documents which are filed as exhibits to the
Registration Statement are accurate in all material respects and
fairly present the information required to be shown; and to such
counsel's knowledge there are no statutes or legal or
governmental proceedings required to be described in the
Prospectus that are not described as required;
(xiii) the Company is not, and will not become as a result
of the consummation of the transactions contemplated by this
Agreement, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, and has not been an
"investment company" at any time since 1988;
(xiv) to such counsel's knowledge, with the exception of the
Registration Rights Agreement dated April 15, 1997, between the
Company, Camden Operating, L.P., and certain listed investors
therein, the Registration Rights Agreement dated as of April 6,
1998 among Oasis Residential, Inc., ISCO and IFT Properties,
Ltd., the Registration Rights Agreement dated as of April 2, 1998
between Oasis Residential, Inc. and Merrill Lynch Private Finance
Limited, the Registration Rights Agreement dated as of February
23, 1999 among the Company, Belcrest Realty Corporation and
Belair Real Estate Corporation and the Registration Rights
Agreement dated as of August 13, 1999 between the Company and
Edgewater Equity Partners, as amended by Amendment to
Registration Rights Agreement dated as of September 7, 1999 and
Second Amendment to Registration Rights Agreement dated as of
January 7, 2000, there are no contracts, agreements or
understandings between the Company and any person granting such
person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities
of the Company owned by such person, or to require the Company to
register such securities pursuant to the Registration Statement;
(xv) the Registration Statement has become effective under
the Securities Act; any required filing of the Prospectus under
Rule 424 under the Securities Act has been made; to the best
knowledge of such counsel no stop order suspending the
effectiveness of the Registration Statement has been issued and
no proceeding for that purpose has been instituted or threatened
by the Commission;
(xvi) such counsel (A) is of the opinion that each document
incorporated by reference in the Registration Statement and the
Prospectus (except for the financial statements included therein
as to which such counsel need express no opinion) complied as to
form in all material respects with the Exchange Act when filed
with Commission, (B) believes that (except for the financial
22
statements included therein as to which such counsel need express
no belief) each part of the Registration Statement (including the
documents incorporated by reference therein) filed with the
Commission pursuant to the Securities Act relating to the
Securities, when such part became effective, did 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, (C) is of the opinion that the
Registration Statement and the Prospectus and any amendments and
supplements thereto (except for the financial statement included
therein as to which such counsel need express no opinion) comply
as to form in all material respects with the requirements of the
Securities Act and the Trust Indenture Act and (D) believes that
(except for the financial statements included therein as to which
such counsel need express no belief) the Registration Statement
and the Prospectus, on the date of this Agreement, did not
contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to
make the statements therein not misleading, and that the
Prospectus as amended or supplemented, if applicable, does not
contain any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
In rendering such opinions, such counsel may rely (A) as to
matters involving the application of laws other than the laws of the
United States and the State of Texas, to the extent such counsel deems
proper and to the extent specified in such opinion, if at all, upon an
opinion or opinions (in form and substance reasonably satisfactory to
the Underwriters' counsel) of other counsel reasonably acceptable to
the Underwriters' counsel, familiar with the applicable laws; (B) as
to matters of fact, to the extent such counsel deems proper, on
certificates of responsible officers of the Company and certificates
or other written statements of officials of jurisdictions having
custody of documents respecting the corporate existence or good
standing of the Company. The opinion of such counsel for the Company
shall state that the opinion of any such other counsel is in form
satisfactory to such counsel and, in such counsel's opinion, the
Underwriters and they are justified in relying thereon. With respect
to the matters to be covered in subparagraph (xvi) above counsel may
state its opinion and belief is based upon their participation in the
preparation of the Registration Statement and the Prospectus and any
amendment or supplement thereto (other than the documents incorporated
by reference therein) and review and discussion of the contents
thereof (including the documents incorporated by reference therein)
but is without independent check or verification except as specified.
(g) Locke Liddell & Sapp LLP, tax counsel for the Company, shall
have delivered to the Underwriters its written opinion, dated the
Closing Date, in form and substance satisfactory to the Underwriters,
to the effect that:
(i) the Company met the requirements for qualification and
23
taxation as a real estate investment trust ("REIT") for the
taxable years 1993 through 2000;
(ii) the Company's diversity of equity ownership and
proposed method of operation should allow it to qualify as a REIT
for its 2001 taxable year; and
(iii) the discussion contained under the caption "Federal
Income Tax Considerations and Consequences of Your Investment" in
the Prospectus forming a part of the Registration Statement,
accurately reflects existing law and fairly addresses the
material federal income tax issues described therein.
In rendering such opinions, Locke Liddell & Sapp LLP may rely as
to matters of fact, to the extent they deem proper, on certificates of
officers of the Company and public officials so long as such counsel
states that no facts have come to the attention of such counsel which
lead them to believe that they are not justified in relying on such
certificates. In addition, Locke Liddell & Sapp LLP may state that
their opinions are based upon the procedures and assumptions set forth
in such opinion letter and that it is limited to the tax matters
specifically covered thereby and that they have not addressed any
other tax consequences.
(h) concurrently with the execution and delivery of this
Agreement, or on the Closing Date prior to payment and delivery of the
Securities, Deloitte & Touche LLP shall have furnished to the
Underwriters a letter, dated the date of its delivery, addressed to
the Underwriters and in form and substance satisfactory to the
Underwriters, confirming that they are independent accountants with
respect to the Company as required by the Securities Act and the rules
and regulations thereunder and with respect to the financial and other
statistical and numerical information contained in the Registration
Statement and the Prospectus or incorporated by reference therein.
Such letter shall contain information of the type customarily included
in accountants' comfort letters to underwriters. If such letter is
delivered as of the date of this Agreement, then at the Closing Date,
Deloitte & Touche LLP shall have furnished to the Underwriters a
letter, dated the date of its delivery, which shall confirm, on the
basis of a review in accordance with the procedures set forth in such
letter, that nothing has come to their attention during the period
from the date of the letter referred to in the prior sentence to a
date (specified in the letter) not more than three days prior to the
Closing Date which would require any change in their letter dated the
date hereof if it were required to be dated and delivered at the
Closing Date;
(i) the Underwriters shall have received on and as of the Closing
Date an opinion of Brown & Wood LLP, counsel for the Underwriters,
with respect to the validity of the Indenture and the Securities, the
Registration Statement, the Prospectus and other related matters as
the Underwriters 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; and
24
(j) on or prior to the Closing Date, the Company shall have
furnished to the Underwriters such further certificates and documents
confirming the representations and warranties contained herein and
related matters as the Underwriters shall reasonably request.
The opinions and certificates mentioned in this Agreement shall be
deemed to be in compliance with the provisions hereof only if they are in
all material respects satisfactory to the Underwriters and their counsel.
7. The Company agrees 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 Securities Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages and liabilities
(including without limitation the reasonable legal fees and other expenses
(including expenses of investigation and settlement) incurred in connection
with any suit, action or proceeding or any claim asserted) caused by any
untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or the Prospectus (as amended or supplemented
if the Company shall have furnished any amendments or supplements thereto)
or any preliminary prospectus, 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 untrue
statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with information relating to the
Underwriters furnished to the Company in writing by such Underwriter
expressly for use therein; provided, that the foregoing indemnity with
respect to any preliminary prospectus shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such Underwriter)
if such untrue statement or omission or alleged untrue statement or
omission made in such preliminary prospectus is eliminated or remedied in
the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) and, if required by law, a
copy of the Prospectus (as so amended or supplemented) shall not have been
furnished to such person asserting any such losses, claims, damages or
liabilities at or prior to the written confirmation of the sale of such
Securities to such person.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its trust managers, its officers who sign the
Registration Statement and each person who controls the Company within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act, to the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter
expressly for use in the Registration Statement, the Prospectus, any
amendment or supplement thereto, or any preliminary prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted
against any person in respect of which indemnity may be sought pursuant to
either of the two preceding paragraphs, such person (the "Indemnified
Person") shall promptly notify the person against whom such indemnity may
25
be sought (the "Indemnifying Person") in writing, and the Indemnifying
Person, upon request of the Indemnified Person, shall retain counsel
satisfactory to the Indemnified Person to represent the Indemnified Person
in such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding. In any such proceeding, any Indemnified Person
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 Person unless
(i) the Indemnifying Person and the Indemnified Person shall have mutually
agreed to the contrary, (ii) the Indemnifying Person has failed within a
reasonable time to retain counsel satisfactory to the Indemnified Person or
(iii) the named parties in any such proceeding (including any impleaded
parties) include both the Indemnifying Person and the Indemnified Person
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 Person shall not, in connection with
any proceeding or related proceeding 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 Indemnified Persons, and that all such fees and
expenses shall be reimbursed as they are incurred. Any such separate firm
for the Underwriters and any such control persons of Underwriters shall be
designated in writing by the Underwriters and any such separate firm for
the Company, its trust managers, its officers who sign the Registration
Statement and such control persons of the Company or authorized
representatives shall be designated in writing by the Company. The
Indemnifying Person 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
Person agrees to indemnify any Indemnified Person from and against any loss
or liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have
requested an Indemnifying Person to reimburse the Indemnified Person for
fees and expenses of counsel as contemplated by the third sentence of this
paragraph, the Indemnifying Person 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 Person of the aforesaid request and (ii) such Indemnifying
Person shall not have reimbursed the Indemnified Person in accordance with
such request prior to the date of such settlement. No Indemnifying Person
shall, without the prior written consent of the Indemnified Person, effect
any settlement of any pending or threatened proceeding in respect of which
any Indemnified Person is or could have been a party and indemnity could
have been sought hereunder by such Indemnified Person, unless such
settlement (i) includes an unconditional release of such Indemnified Person
from all liability on claims that are the subject; matter of such
proceeding and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any Indemnified
Person.
26
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an Indemnified Person or insufficient
in respect of any losses, claims, damages or liabilities referred to
therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the
amount paid or payable by such Indemnified Person 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 on the
one hand and the Underwriters on the other hand from the offering of the
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 on the one hand and the Underwriters
on the other 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 on the one hand and the Underwriters on the other shall be deemed
to be in the same respective proportions as the net proceeds from the
offering of such Securities (before deducting expenses) received by the
Company and the total underwriting discounts and the commissions received
by the Underwriters bear to the aggregate public offering price of the
Securities. The relative fault of the Company on the one hand and the
Underwriters on the other 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 by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by pro rata allocation or by any
other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person 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 incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligation to contribute pursuant to
this Section 7 shall be several in proportion to their respective
underwriting commitments as set forth in Schedule I hereto and not joint.
The indemnity and contribution agreements contained in this Section 7
are in addition to any liability which the Indemnifying Persons may
otherwise have to the Indemnified Persons referred to above.
27
The indemnity and contribution agreements contained in this Section 7
and the representations, warranties and covenants of the Company set forth
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 by or on behalf of the Company, its officers or directors or
any other person controlling the Company and (iii) acceptance of and
payment for any of the Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Underwriters, by notice given
to the Company, if after the execution and delivery of this Agreement and
prior to the Closing Date (i) the Company shall have failed, refused or
been unable, at or prior to the Closing Date, to perform any agreement on
its part to be performed hereunder, (ii) any other condition of the
Underwriters' obligations hereunder is not fulfilled, (iii) there shall
have occurred, since the respective dates as of which information is given
in the Registration Statement and the Prospectus, any material adverse
change or any development involving a prospective material adverse change
in or affecting the condition, financial or otherwise, of the Company or
the earnings, business affairs, properties, management or business
prospects of the Company, whether or not arising in the ordinary course of
business, (iv) trading generally shall have been suspended or materially
limited on or by the New York Stock Exchange, (v) trading of any securities
of or guaranteed by the Company shall have been suspended on any exchange
or in any over-the-counter market, (vi) a general moratorium on commercial
banking activities in New York shall have been declared by either Federal
or New York State authorities, (vii) there has occurred any downgrading or
notice of any intended or potential downgrading or any review or possible
change that indicates anything other than a stable outlook in the rating of
the Company's debt securities by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g)(2) under the
Securities Act) or (viii) there shall have occurred any outbreak or
escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the judgment of the Underwriters, is material
and adverse and which, in the judgment of the Underwriters, makes it
impracticable to market the Securities on the terms and in the manner
contemplated in the Prospectus.
9. If, on the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase Securities which it or they have agreed to
purchase under this Agreement, and the aggregate principal amount of
Securities which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate
principal amount of the Securities, the other Underwriters shall be
obligated severally in the proportions that the principal amount of
Securities set forth opposite their respective names in Schedule I hereto
bears to the aggregate principal amount of Securities set forth opposite
the names of all such non-defaulting Underwriters, or in such other
proportions as the Underwriters may specify, to purchase the Securities
which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date; provided that in no event shall the
principal amount of Securities that any Underwriter has agreed to purchase
pursuant to Section 1 be increased pursuant to this Section 9 by an amount
in excess of one-ninth of such principal amount of Securities without the
written consent of such Underwriter. If, on the Closing Date, any
Underwriter or Underwriters shall fail or refuse to purchase Securities and
the aggregate principal amount of Securities with respect to which such
default occurs is more than one-tenth of the aggregate principal amount of
Securities to be purchased, and arrangements satisfactory to the
Underwriters and the Company for the purchase of such Securities are not
made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the
Company. In any such case either the Underwriters or the Company shall have
28
the right to postpone the Closing Date, but in no event for longer than
seven days, in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or arrangements
may be effected. Any action taken under this paragraph shall not relieve
any defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any
of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Company shall be unable to perform its
obligations under this Agreement or any condition of the Underwriters'
obligations cannot be fulfilled, the Company agrees to reimburse the
Underwriters or such Underwriters as have so terminated this Agreement with
respect to themselves, severally, for all out-of-pocket expenses (including
the reasonable fees and expenses of their counsel) reasonably incurred by
such Underwriters in connection with this Agreement or the offering of
Securities.
11. This Agreement shall inure to the benefit of and be binding upon
the Company, the Underwriters, any controlling persons referred to herein
and their respective successors and assigns. Nothing expressed or mentioned
in this Agreement is intended or shall be construed to give any other
person, firm or corporation any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. No
purchaser of Securities from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
12. All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given if mailed or transmitted by any
standard form of telecommunication. Notices to the Underwriters shall be
given at c/o Chase Securities Inc., 270 Park Avenue, New York, NY
10017-2070, Attention: Syndicate Desk. Notices to the Company shall be
given to it at Three Greenway Plaza, Suite 1300, Houston, Texas 77046,
Attention: G. Steven Dawson, Senior Vice President - Finance, Chief
Financial Officer, Treasurer and Secretary.
13. Miscellaneous. This Agreement may be signed in counterparts, each
of which shall be an original and all of which together shall constitute
one and the same instrument. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without
giving effect to the conflicts of laws provisions thereof.
Very truly yours,
CAMDEN PROPERTY TRUST
By:
--------------------------------------------
Name: G. Steven Dawson
Title: Senior Vice President - Finance,
Chief Financial Officer, Treasurer
and Secretary
29
Accepted: February 7, 2001
BANC OF AMERICA SECURITIES LLC
CHASE SECURITIES INC.
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
ABN AMRO INCORPORATED
BANC ONE CAPITAL MARKETS, INC.
COMMERZBANK CAPITAL MARKETS CORP.
CREDIT SUISSE FIRST BOSTON CORPORATION
FIRST UNION SECURITIES, INC.
WACHOVIA SECURITIES, INC.
By: Chase Securities Inc.
By:
------------------------------------------
Name:
Title:
SCHEDULE I
Underwriters: Principal Amount Principal Amount
of 2006 Notes of 2011 Notes
------------- -------------
BANC OF AMERICA SECURITIES LLC $18,250,000 $ 54,750,000
CHASE SECURITIES INC. 18,250,000 54,750,000
MERRILL LYNCH, PIERCE, FENNER & SMITH 7,500,000 22,500,000
INCORPORATED
ABN AMRO INCORPORATED 1,000,000 3,000,000
BANC ONE CAPITAL MARKETS, INC. 1,000,000 3,000,000
COMMERZBANK CAPITAL MARKETS CORP. 1,000,000 3,000,000
CREDIT SUISSE FIRST BOSTON CORPORATION 1,000,000 3,000,000
FIRST UNION SECURITIES, INC. 1,000,000 3,000,000
WACHOVIA SECURITIES, INC. 1,000,000 3,000,000
----------- ------------
$50,000,000 $150,000,000
=========== ============
30
Underwriting Agreement dated: February 7, 2001.
Registration Statement No.: 333-92959
Indenture: Indenture dated as of February 15, 1996 and
Supplemental Indenture dated as of February
15, 1996, both between Camden Property Trust
(the "Company") and U.S. Trust Company of
Texas, N.A.
The Securities: 7% Notes due 2006 (the "2006 Notes") and
7.625% Notes due 2011 (the "2011 Notes")
(collectively, the "Notes")
The 2006 Notes have the The 2011 Notes have
following terms: the following terms:
Title of Securities: 7% Notes due 2006. 7.625% Notes due 2011.
Currency: United States Dollars United States Dollars
Aggregate Principal Amount: $50,000,000 $150,000,000
Current Ratings: Moody's Investors Moody's Investors
Service, Inc.: Baa2; Service, Inc.: Baa2;
Standard & Poor's Standard & Poor's
Ratings Services: BBB; Ratings Services: BBB;
Fitch, Inc.: BBB. Fitch, Inc.: BBB.
Price to Public: 99.522% of the 99.544% of the
principal amount of the principal amount of the
2006 Notes, plus 2011 Notes, plus
accrued interest from accrued interest from
February 12, 2001. February 12, 2001.
Purchase Price: 98.922% of the principal 98.894% of the
amount of the principal amount of the
2006 Notes, plus 2011 Notes, plus
accrued interest from accrued interest from
February 12, 2001. February 12, 2001.
31
Form: Global Note. Global Note.
Maturity: February 15, 2006. February 15, 2011.
Interest Payment Dates: Semi-annually on February 15 and August 15,
commencing on August 15, 2001.
Redemption: Optional redemption by the Company of some or all
of the Notes on one or more occasions prior to
maturity at a price equal to the sum of (a) 100%
of the principal amount of the Notes and (b) a
make-whole premium, together with accrued and
unpaid interest up to but not including the
redemption date.
Sinking Fund Provisions: None.
Denomination and Form: The Notes are issuable only in registered form
without coupons in denominations of $1,000 and any
integral multiple thereof.
Defeasance and Covenant Sections 1402 and 1403 of the Indenture contain
Defeasance: provisions for defeasance at any time of (a) the
entire indebtedness of the Company on the Notes
and (b) certain restrictive covenants, which shall
include all covenants contained in the
Supplemental Indenture dated as of February 15,
1996, and the related defaults and Events of
Default applicable to the Company, in each case,
upon compliance by the Company with certain
conditions set forth in the Indenture, which
provisions apply to the Notes.
Seniority and Certain The Notes shall rank on a parity with the
Other Provisions: Company's senior indebtedness. The provisions of
the Supplemental Indenture dated as of February
15, 1996, including the restrictions of Section
1012 set forth therein, shall apply to the Notes.
Definitions and Other As per Prospectus Supplement dated February 7,
Provisions: 2001.
Closing Date, Time and February 12, 2001, 9:00 a.m., New York time, at
Location: the offices of Brown & Wood LLP in New York, New
York.