Camden Property Trust
Debt Securities
Underwriting Agreement
November 14, 1996
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
J.P. MORGAN SECURITIES INC.
NATIONSBANC CAPITAL MARKETS, INC.
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Dear Sirs:
Camden Property Trust, a Texas real estate investment trust
(the "Company"), proposes to issue and sell to the underwriters
named in Schedule II hereto (the "Underwriters"), for whom you
are acting as representatives (the "Representatives"), the
principal amount of its debt securities identified in Schedule I
hereto (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"). If the firm or firms listed in Schedule II hereto
include only the firm or firms listed in Schedule I hereto, then
the terms "Underwriters" and "Representatives," as used herein,
shall each be deemed to refer to such firm or firms.
The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") in accordance with the
provisions of the 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 "Basic Prospectus."
The Basic 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 Basic 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 Basic Prospectus, any
preliminary prospectus or the Prospectus, as the case may be; and
any reference to "amend," "amendment" or "supplement" with
respect the Registration Statement, the Basic 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 Basic 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 amount of Securities set forth
opposite such Underwriter's name in Schedule II hereto at the
purchase price 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 several Underwriters
intend (i) to make a public offering of their respective portions
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 you and the Company
may agree in writing). Such payment will be made upon delivery
to, or to you for the respective accounts of, such Underwriters
of the Securities registered in such names and in such
denominations as you shall request not less than two full
Business Days 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
you by 1:00 P.M. on the Business Day prior to the Closing Date at
such place in New York City as you and the Company shall agree.
4. The Company represents and warrants to each Underwriter
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 do not and will not, as of the
applicable effective date as to the Registration Statement and
any amendment thereto and as of the date of the Prospectus and
any amendment or supplement thereto, 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, in
the light of the circumstances under which they were made, not
misleading, and the Prospectus, as amended or supplemented at the
Closing Date, 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 through the Representatives 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 any Underwriter to the
Company) that the statements set forth in the third paragraph,
the second sentence of the fourth paragraph and the amounts set
forth under the column heading "Principal Amount of Notes" under
the heading "Underwriting" in the Prospectus constitute the only
information relating to any Underwriter furnished in writing to
the Company by the Underwriters or the Representatives
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
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;
(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
not required to qualify for the transaction of business under the
laws of any other jurisdiction; 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 III
hereto (the "Subsidiaries") are all of the Company's
Subsidiaries, have full power and authority to conduct its
business as described in the Registration Statement and the
Prospectus, have been duly organized and are validly existing as
corporations or limited partnerships, as the case may be, in good
standing under the laws of their states of organization, and have
been duly qualified as foreign corporations or limited
partnerships, 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, 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;
complete and correct copies of the charter documents and the
by-laws, if any, of each of the Subsidiaries and all amendments
thereto have been previously delivered to you, 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 disclosed in the
Registration Statement or Prospectus, is owned by the Company
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 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 is, 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 or By-Laws 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 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 have
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;
(l) 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 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 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
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 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 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 any Underwriter 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
each Underwriter 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 you 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 Representative and counsel for the
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, to each of the
Underwriters as many copies of the Prospectus (including all
amendments and supplements thereto) and documents incorporated by
reference therein as you may reasonably request, when filed with
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 prior to the Closing Date, to
furnish to you a copy of any proposed amendment or supplement to
the Registration Statement or the Prospectus, for your review,
and not to file any such proposed amendment or supplement to
which you 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 you 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 as 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 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 furnish, at the expense
of the Company, to the Underwriters and to the dealers (whose
names and addresses you will furnish to the Company) to which
Securities may have been sold by you on behalf of 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 you 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
you 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 you 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 you 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 your
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 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 Supplemental Blue Sky Memoranda and any Legal
Investment Survey and the furnishing to 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 10 hereof, the Company shall not be obligated to pay the
fees of counsel for the Underwriters and their disbursements.
6. The several obligations of the 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 your
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 does not indicate an improvement, 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 Corporation, BBB- by Duff &
Phelps Credit Rating Co. 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
Representatives 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 Representatives shall have received on and as of
the Closing Date a certificate, satisfactory to you, of the
President and the Chief Financial Officer, or such other senior
executive officer or officers of the Company as are satisfactory
to you, 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) Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P., counsel
for the Company, shall have furnished to you its written opinion,
dated the Closing Date, in form and substance satisfactory to
you, 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 not required to qualify for the
transaction of business under the laws of any jurisdiction;
(iii) the Subsidiaries have been duly organized and
are validly existing as corporations 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
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 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 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 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;
(ix) 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 or By-Laws 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 Underwriter;
(xii) the statements in the Basic Prospectus under the
captions "Description of Common Shares," "Description of
Preferred Shares," "Description of Securities Warrants," and
"Description of Debt Securities," and the statements in the
Prospectus under the caption "Description of 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, 1995 and in the Registration Statement
insofar as such statements constitute 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, 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 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 Act; any required filing of the Prospectus under Rule
424 under the 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 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 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) Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P., tax
counsel for the Company, shall have delivered to you its written
opinion, dated the Closing Date, in form and substance
satisfactory to you, to the effect that:
(i) the Company met the requirements for qualification
and taxation as a real estate investment trust ("REIT") for the
taxable years 1993 through 1995;
(ii) the Company's diversity of equity ownership and
proposed method of operation should allow it to qualify as a REIT
for 1996; and
(iii) the discussion contained under the caption
"Certain Federal Income Tax Considerations" 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, Liddell, Sapp, Zivley, Hill &
LaBoon, L.L.P. 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, Liddell, Sapp, Zivley, Hill & LaBoon,
L.L.P. 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 Representatives a letter, dated the date of its delivery,
addressed to the Representatives and in form and substance
satisfactory to the Representatives, 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
Representatives 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) you shall have received on and as of the Closing Date
an opinion of Goodwin, Procter & Hoar LLP, counsel to the
Underwriters, with respect to the validity of the Indenture and
the Securities, the Registration Statement, the Prospectus and
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; and
(j) on or prior to the Closing Date, the Company shall
have furnished to the Representatives such further certificates
and documents confirming the representations and warranties
contained herein and related matters as the Representatives 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
Representatives and to Goodwin, Procter & Hoar LLP, counsel for
the Underwriters.
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 any Underwriter furnished
to the Company in writing by such Underwriter through the
Representatives 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) from whom the
person asserting any such losses, claims, damages or liabilities
purchased Securities 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 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 through the Representatives 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 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 such control persons of Underwriters shall be
designated in writing by the first of the named Representatives
on Schedule I hereto 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.
If the indemnification provided for in the first and second
paragraphs of this Section 7 is unavailable to an Indemnified
Person 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 (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 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' obligations
to contribute pursuant to this Section 7 are several in
proportion to the respective principal amount of the Securities
set forth opposite their names 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.
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
Representatives, 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 in the rating of the Company's debt securities by
any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Exchange 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 Representatives, is material
and adverse and which, in the judgment of the Representatives,
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
Representatives 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 you 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 you or the Company shall have 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. Any action by the Underwriters hereunder may be taken by
you jointly or by the first of the named Representative set forth
in Schedule I hereto alone on behalf of the Underwriters, and any
such action taken by you jointly or by the first of the named
Representatives set forth in Schedule I hereto alone shall be
binding upon the Underwriters. 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 the address set forth in Schedule II hereto. Notices to
the Company shall be given to it at 3200 Southwest Freeway, Suite
1500, Houston, Texas 77027, attention: Elizabeth P. Johnson,
Esq., Senior Vice President General Counsel 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:/s/ G. Steven Dawson
--------------------------
Name: G. Steven Dawson
Title: Senior Vice President and
Chief Financial Officer
Accepted: November 14, 1996
MERRILL LYNCH & CO.
J.P. MORGAN SECURITIES INC.
NATIONSBANC CAPITAL MARKETS, INC.
By: Merrill Lynch & Co.
By:/s/ Nicholas J. Rossetti
--------------------------
Name:
Title:
PAGE
SCHEDULE I
Representatives: Merrill Lynch & Co.
J.P. Morgan Securities Inc.
NationsBanc Capital Markets,
Inc.
Underwriting Agreement dated: November 14, 1996
Registration Statement No.: 33-84536
Title of Securities: 7% Notes due 2006
Aggregate principal amount: $75,000,000
Price to Public: 98.887% of the principal
amount of the Securities, plus
accrued interest, if any, from
November 19, 1996
Underwriting Discount: .70%
Indenture: Indenture dated as of February
15, 1996 and Supplemental
Indenture dated as of February
15, 1996, both between Camden
Property Trust and U.S. Trust
Company of Texas, N.A.
Maturity: November 15, 2006
Interest Rate: 7% per annum
Interest Payment Dates: May 15 and November 15,
commencing May 15, 1997
Optional Redemption Provisions: At any time at the option of
the Company subject to payment
of a Make-Whole Amount
described in the Prospectus
Supplement dated November 14,
1996
Sinking Fund Provisions: None
Other Provisions: As per Prospectus Supplement
dated November 14, 1996
Closing Date, Time and Location: November 19, 1996, 9:00 a.m.
at the offices of Liddell,
Sapp, Zivley, Hill & LaBoon,
L.L.P. in Houston, Texas
Address for Notices Merrill Lynch & Co.
to Underwriters: World Financial Center
North Tower, 26th Floor
New York, New York 10281-1326
PAGE
SCHEDULE II
Principal Amount
Underwriter To Be Purchased
- ----------- ----------------
Merrill Lynch & Co. $52,500,000
J.P. Morgan Securities Inc. $11,250,000
NationsBanc Capital Markets, Inc. $11,250,000
-----------
Total $75,000,000
PAGE
SCHEDULE III
State of Qualification
Subsidiary Incorporation States
- -------------------- ------------------ ---------------
Apartment Connection, Delaware - 6/19/93 Texas - 7/21/93
Inc.
Camden Development, Delaware - 11/3/93 Texas - 11/5/93
Inc. Arizona - 6/30/94
Colorado - 7/13/94
Camden Communications Delaware - 3/2/95 Texas - 4/4/95
One, Inc.
CPT Arizona, Inc. Delaware - 3/2/94 Arizona - 4/20/94
Camden Colorado, Inc. Delaware - 2/1/94 Colorado - 2/14/94
CPT Texas, Inc. Delaware - 5/9/94 Texas - 5/13/94
Camden Bay Crest, Inc. Delaware - 6/11/93 Texas - 6/21/93
Camden Glen Lakes, Inc. Delaware - 6/11/93 Texas - 6/21/93
Camden Hayes Place, Delaware - 6/11/93 Texas - 6/21/93
Inc.
Camden Roseland Place, Delaware - 6/11/93 Texas - 6/21/93
Inc.
Camden Wilshire Place, Delaware - 6/11/93 Texas - 6/21/93
Inc.