Exhibit 1.1
Camden Property Trust
Debt Securities
Underwriting Agreement
$75,000,000
Remarketed Reset Notes
Due May 9, 2002
May 6, 1997
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower, 26th Floor
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Camden Property Trust, a Texas real estate investment trust (the
"Company"), proposes to issue and sell to you (herein sometimes referred to
as the "Underwriter") 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").
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 "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 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 you as follows:
1. The Company agrees to issue and sell the Securities to you as
hereinafter provided, and you, on the basis of the representations and
warranties herein contained, but subject to the conditions hereinafter
stated, agree to purchase from the Company the principal amount of
Securities 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 you 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
you and the Company may agree in writing). Such payment will be made upon
delivery to you of the Securities registered in such names and in such
denominations as you shall request not less than one full Business Day
prior to the date of delivery, with any transfer taxes payable in
connection with transfer to you 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 you 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 you furnished to the
Company in writing by you 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 you to
the Company) that the statements set forth in the second paragraph and the
third sentence of the third paragraph under the heading "Underwriting" in
the Prospectus constitute the only information relating to you furnished in
writing to the Company by you 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 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
prospectus of the Company and its Subsidiaries taken as a whole; except for
investments in securities as described in the Registration Statement or
Prospectus and the entities acquired from Paragon Group, Inc. effective
April 15, 1997, 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 (the "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 primary
Subsidiaries of the Company 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
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, 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 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 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
you;
(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 you or to your counsel in connection with the offering of the
Securities shall be deemed a representation and warranty by the Company to
you as to the matters covered thereby on the date of such certificate.
5. The Company covenants and agrees with you 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 you and your counsel, 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 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, in the opinion of your counsel, a prospectus
relating to the Securities is required by law to be delivered in connection
with sales by you 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
furnish, at the expense of the Company, to you and to the dealers (whose
names and addresses you will furnish to the Company) to which Securities
may have been sold by you 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 your counsel) 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 you
may designate (including fees of your counsel and its 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 you 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 your
counsel and its disbursements.
6. Your obligations 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 Ratings Services, 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 your judgment
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) you 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 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 prospectus 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 and the entities acquired from Paragon Group, Inc.
effective April 15, 1997, 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 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 you 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;
(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 you;
(xii) the statements in the Base 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, 1996 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, with the exception of
the Registration Rights Agreement dated April 15, 1997, between the
Company, Camden Operating, L.P., and certain listed investors therein,
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 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 your counsel) of
other counsel reasonably acceptable to your 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, you 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 1996;
(ii) the Company's diversity of equity ownership and
proposed method of operation should allow it to qualify as a REIT for 1997;
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 you a letter,
dated the date of its delivery, addressed to you and in form and substance
satisfactory to you, 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 you 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 your counsel, Brown & Wood LLP, with respect to the validity
of the Indenture and the Securities, the Registration Statement, the
Prospectus and other related matters as you 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 you such further certificates and documents confirming the
representations and warranties contained herein and related matters as you
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 you and your counsel.
7. The Company agrees to indemnify and hold harmless you and each
person, if any, who controls you 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 you furnished to the Company in
writing by you expressly for use therein; provided, that the foregoing
indemnity with respect to any preliminary prospectus shall not inure to
your benefit (or to the benefit of any person controlling you) 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.
You agree 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 you, but only with reference to information
relating to you furnished to the Company in writing by you 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 you and any such control persons of you shall be designated in writing
by you 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 you 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 you 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 you 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 you bear to the aggregate public offering price of
the Securities. The relative fault of the Company on the one hand and you
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 you and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and you 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 you be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by you
and distributed to the public were offered to the public exceeds the amount
of any damages that you have 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 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 you or any person controlling you 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 your absolute discretion, 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 your 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 your judgment, is material and adverse and which, in your
judgment, makes it impracticable to market the Securities on the terms and
in the manner contemplated in the Prospectus.
9. If this Agreement shall be terminated by you 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 your obligations cannot be fulfilled, the Company
agrees to reimburse you for all out-of-pocket expenses (including the
reasonable fees and expenses of your counsel) reasonably incurred by you in
connection with this Agreement or the offering of Securities.
10. This Agreement shall inure to the benefit of and be binding upon
the Company, you, 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 you shall be deemed to be a successor by reason merely
of such purchase.
11. 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 you
shall be given to you at Merrill Lynch & Co., Merrill, Lynch, Pierce,
Fenner & Smith Incorporated, North Tower, 26th Floor, World Financial
Center, New York, New York 10281-1209, Attention: Tjarda van S. Clagett,
Director. Notices to the Company shall be given to it at 3200 Southwest
Freeway, Suite 1500, Houston, Texas 77027, Attention: G. Steven Dawson,
Senior Vice President - Finance, Chief Financial Officer, Treasurer and
Assistant Secretary.
[Remainder of Page Intentionally Left Blank]
PAGE
12. 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 - Finance,
Chief Financial Officer,
Treasurer and Assistant Secretary
Accepted: May 6, 1997
By: Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch & Co.
By: /s/ Tjarda van S. Clagett
-------------------------------
Name: Tjarda van S. Clagett
Title: Director
SCHEDULE I
Underwriter: Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated ("Merrill
Lynch")
Underwriting Agreement dated: May 6, 1997
Registration Statement No.: 333-24637
Indenture: Indenture dated as of February 15, 1996 and
Supplemental Indenture dated as of February
15, 1996, both between Camden Property Trust
("Camden") and U.S. Trust Company of Texas,
N.A.
Title of Securities: Remarketed Reset Notes due May 9, 2002 (the
"Notes")
Currency: United States Dollars
Aggregate Principal Amount: $75,000,000
Current Ratings: Moody's Investors Service, Inc.: Baa3;
Standard & Poor's Ratings Services: BBB-;
Duff & Phelps Credit Rating Co.: BBB-
Price to Public: 100% of the principal amount of the Notes,
plus accrued interest from May 9, 1997.
Purchase Price: 99.70% of the principal amount of the Notes,
plus accrued interest from May 9, 1997.
Gross Spread: 0.30% for initial Remarketing Period.
0.075% per annum for each additional period.
Day Basis: Actual/360 for Floating Rate Mode; 30/360
for Fixed Rate Mode.
Form: Global Note.
Maturity: May 9, 2002.
Initial Spread Period: The one-year period commencing May 9, 1997
and ending May 11, 1998 during which the
interest rate on the Notes will be reset
quarterly and will equal LIBOR (as
defined)plus .32%.
Initial Interest Rate: LIBOR (as defined) plus .32% until May 11,
1998; thereafter, either (i) LIBOR plus the
applicable Spread (as defined) if in the
Floating Rate Mode or (ii) the applicable
Spread plus the comparable Treasury rate if
in the Fixed Rate Mode.
Initial Interest Payment Quarterly on August 9, 1997, November 9,
Dates: 1997, February 9, 1998, and May 11, 1998;
the interest rate on the Notes will be reset
quarterly and will be payable in arrears
until May 11, 1998.
Duration/Mode
Determination Date: After the Initial Spread Period, the
character and duration of the interest rate
on the Notes will be agreed to by Camden and
the Remarketing Underwriter on each
applicable Duration/Mode Determination Date,
which is the 15th calendar date prior to the
first date of each Subsequent Spread Period.
Subsequent Spread Period: Determined by agreement between Camden and
the Remarketing Underwriter on the
applicable Duration/ Mode Determination
Date. Each Subsequent Spread Period will
last for either one year, two years, three
years or four years (or any six-month
interval thereof) but cannot exceed
the maturity date of the Notes.
Interest Rate During
Subsequent Spread Periods: If the Notes are in the Floating Rate Mode,
interest will equal LIBOR plus the
applicable Spread, as agreed to by the
Company and the Remarketing Underwriter. If
the Notes are in the Fixed Rate Mode,
interest will equal the applicable Spread
plus the comparable Treasury rate.
Subsequent Spread: Determined by agreement between the
Remarketing Underwriter and Camden to result
in a rate which will enable 100% of tendered
Notes to be remarketed.
Alternate Spread: The percentage equal to LIBOR for the
Quarterly Period beginning on the
Commencement Date of the Subsequent
Spread Period.
Redemption: On or after May 11, 1998, the Notes may be
redeemable, in whole or part, at the option
of Camden, on those Interest Payment Dates
that are specified as redemption dates by
Camden on the applicable Duration/Mode
Determination Date.
Sinking Fund Provisions: None.
Definitions and Other
Provisions: As per Prospectus Supplement dated May 6,
1997.
Closing Date, Time and
Location: May 9, 1997, 9:00 a.m. at the offices of
Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P.
in Dallas, Texas.
PAGE
SCHEDULE II
SUBSIDIARIES OF CAMDEN PROPERTY TRUST
Subsidiary State of Incorporation Qualification States
- ----------------------- ---------------------- --------------------
Camden Connection, Inc. Delaware - 6/19/93 Texas - 7/21/93
Camden Development, Inc. Delaware - 11/3/93 Texas - 11/5/93
Arizona - 6/30/94
Colorado - 7/13/94
TeleServe, Inc. Delaware - 3/2/95 Texas - 4/4/95
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, Inc. Delaware - 6/11/93 Texas - 6/21/93
Camden Roseland Place, Inc. Delaware - 6/11/93 Texas - 6/21/93
Camden Wilshire Place, Inc. Delaware - 6/11/93 Texas -6/21/93
Camden Acquisition, Inc. Delaware - 7/11/96 Texas - 7/15/96
Camden Building, Inc. Delaware - 8/19/96 Texas - 8/29/96
Camden Housing, Inc. Delaware - 5/17/96 N/A
Camden Subsidiary, Inc. Delaware - 12/12/96 N/A
CPT-GP, Inc. Delaware - 4/7/94 Florida - 7/5/94
Kentucky - 7/5/94
Maryland - 12/9/94
Missouri - 7/5/94
North Carolina - 7/5/94
South Carolina - 7/6/94
Texas - 6/13/94
CPT-LP, Inc. Delaware - 4/7/94 N/A
Camden Operating, L.P. Delaware - 12/31/93 Florida - 6/24/94
Kentucky - 6/21/94
Maryland - 12/9/94
Missouri - 6/17/94
North Carolina - 7/6/94
South Carolina - 7/1/94
Texas - 6/24/94