EXHIBIT 1.1
CAMDEN PROPERTY TRUST
Debt Securities
Underwriting Agreement
$150,000,000 5.875% Notes due 2007
May 29, 2002
J.P. MORGAN SECURITIES INC.
COMMERZBANK CAPITAL MARKETS CORP.
BANC OF AMERICA SECURITIES LLC
CREDIT SUISSE FIRST BOSTON CORPORATION
c/o J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017-2070
Ladies and Gentlemen:
Camden Property Trust, a Texas real estate investment trust (the
"Company"), proposes to issue and sell to the underwriters named in Schedule I
hereto (the "Underwriters") the respective principal amounts of its debt
securities identified in Schedule I hereto (collectively, the "Securities"), to
be issued under the indenture specified in Schedule I hereto (including the
Supplemental Indenture referred to in Schedule I, the "Indenture") between the
Company and the Trustee identified in such Schedule I (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 to the Registration Statement, the Base
Prospectus, any preliminary prospectus or the Prospectus shall be deemed to
refer to and include any filing of documents under, or any documents filed
under, the Exchange Act after the date of this Agreement, or the date of the
Base Prospectus, any preliminary prospectus or the Prospectus, as the case may
be, which are deemed to be incorporated by reference therein.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities to the several
Underwriters as hereinafter provided, and each Underwriter, on the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees to purchase, severally and not jointly, from the
Company the 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 the Underwriters intend (i) to make a
public offering of the Securities and (ii) initially to offer the Securities
upon the terms set forth in the Prospectus.
3. Payment for the Securities shall be made to the Company or to its
order in immediately available funds on the date and at the time and place set
forth in Schedule I hereto (or at such other time and place on the same or such
other date, not later than the third Business Day thereafter, as the
Underwriters and the Company may agree in writing). Such payment will be made
upon delivery to such Underwriters of the Securities registered in such names
and in such denominations as the Underwriters shall request not less than one
full Business Day prior to the date of delivery, with any transfer taxes payable
in connection with transfer to the Underwriters duly paid by the Company. As
used herein, the term "Business Day" means any day other than a day on which
banks are permitted or required to be closed in New York City. The time and date
of such payment and delivery with respect to the Securities are referred to
herein as the Closing Date. The certificates for the Securities will be made
available for inspection and packaging by the Underwriters by 1:00 P.M. on the
Business Day prior to the Closing Date at such place in New York City as the
Underwriters and the Company shall agree.
4. The Company represents and warrants to each Underwriter as of the
date hereof and as of the Closing Date that:
(a) the Registration Statement has been declared effective by
the Commission under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of
the Company, threatened by the Commission; and the Registration
Statement and Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) comply, or
will comply, as the case
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may be, in all material respects with the Securities Act and the Trust
Indenture Act of 1939, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Trust Indenture Act"); and
the Registration Statement does not and will not, as of its applicable
effective date and any amendment thereto and at the date hereof and at
the Closing Date, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein, not misleading, and the
Prospectus, as amended or supplemented at the Closing Date and any
amendment or supplement to the Prospectus thereafter, if applicable,
will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
except that the foregoing representations and warranties shall not
apply to (i) that part of the Registration Statement which constitutes
the Statement of Eligibility and Qualification (Form T-1) under the
Trust Indenture Act of the Trustee, and (ii) statements or omissions in
the Registration Statement or the Prospectus made in reliance upon and
in conformity with information relating to any Underwriter furnished to
the Company in writing by such Underwriter expressly for use therein,
and the Company acknowledges (for the purposes of this paragraph (a)
and anywhere else in this Agreement where a reference appears to
writings furnished by the Underwriters to the Company) that the
statements set forth in the second sentence of the third paragraph and
the fourth and sixth paragraphs under the heading "Underwriting" in the
Prospectus constitute the only information relating to any Underwriter
furnished in writing to the Company by the Underwriters specifically
for inclusion in the Registration Statement;
(b) the documents incorporated by reference in the Prospectus,
when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act, and none of such
documents contained an untrue statement of a material fact or omitted
to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus, when such documents are filed with the
Commission will conform in all material respects to the requirements of
the Exchange Act, as applicable, and will not contain an untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the 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
and its consolidated subsidiaries 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
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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 or its consolidated
subsidiaries, 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 prospects of the Company and
its Subsidiaries taken as a whole; except for investments in securities
as described in the Registration Statement or Prospectus or for
investments in securities that are not, individually or in the
aggregate, material to the Company and its Subsidiaries taken as a
whole, the Company has no equity or other interest in, or rights to
acquire, an equity or other interest in any corporation, partnership,
trust, joint venture or other entity; the subsidiary entities of the
Company identified on Schedule II hereto (the "Subsidiaries") are all
of the Company's Subsidiaries, have full power and authority to conduct
their business as described in the Registration Statement and the
Prospectus, have been duly organized and are validly existing as
corporations, limited partnerships or limited liability companies, as
the case may be, in good standing under the laws of their states of
organization, and have been duly qualified as foreign corporations,
limited partnerships or
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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 for investments in securities
that are not, individually or in the aggregate, material to the Company
and its Subsidiaries taken as a whole, or ownership of interests of
lower tier Subsidiaries, the Subsidiaries have no equity or other
interest in, or rights to acquire, an equity or other interest in any
corporation, partnership, trust, joint venture or other entity; the
Subsidiaries of the Company that are "significant subsidiaries" (as
defined in Rule 1-02(w) of Regulation S-X) are identified on Schedule
II hereto and complete and correct copies of the charter documents and
the by-laws, if any, of such Subsidiaries and all amendments thereto
have been previously made available or delivered to the Underwriters,
and no changes therein will have been made subsequent to the date
hereof and prior to the Closing Date; all of the issued and outstanding
capital stock of each Subsidiary that is a corporation or similar
entity has been duly authorized and validly issued, is fully paid and
nonassessable and, except as otherwise indicated on Schedule II hereto,
is owned by the Company, directly or through Subsidiaries, free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or restriction;
(f) the Company has full power and authority to enter into
this Agreement and the Indenture and to issue, offer and sell the
Securities as contemplated by this Agreement; this Agreement and the
Indenture have been duly authorized, executed and delivered by the
Company and constitute the valid and legally binding obligations of the
Company enforceable in accordance with their terms, except that the
enforceability thereof may be limited by or subject to (i) bankruptcy,
reorganization, insolvency, fraudulent conveyance, moratorium or other
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
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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 any of the Subsidiaries is, nor
with the giving of notice or lapse of time or both would be, in
violation of or in default under, its 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 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 or any 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, 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,
6
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 and the Subsidiaries have 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;
(1) the Company and the Subsidiaries hold all material
licenses, certificates and permits from governmental authorities which
are necessary to the conduct of their business;
(m) Deloitte & Touche LLP, who have certified certain of the
financial statements filed with the Commission as part of, or
incorporated by reference in, the Registration Statement, are
independent public accountants as required by the Securities Act;
(n) the Company has never been, is not now, and immediately
after the sale of the Securities under this Agreement will not be, an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended; the Company is organized, and has operated,
operates and will continue to operate in a manner so as to qualify as a
"real estate investment trust" (a "REIT") under Sections 856 through
860 of the Internal Revenue Code of 1986, as amended, and the Company's
present and contemplated operations, assets and income continue to meet
such requirements;
(o) the conditions for the use of a registration statement on
Form S-3 set forth in the General Instructions on Form S-3 have been
satisfied and the Company is entitled to use such form for the
transactions contemplated herein;
(p) with respect to the properties of the Company described in
the Prospectus or reflected in the Company's consolidated financial
statements included or incorporated by reference therein (the
"Properties"), the Company and its Subsidiaries (i) are in compliance
with any and all applicable foreign, Federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have obtained all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are
in compliance with all terms and conditions of any such permit, license
or approval, except where such noncompliance with Environmental Laws,
failure to obtain required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits,
licenses or approvals are otherwise disclosed in the Prospectus or
would not,
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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 operations 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.
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(q) the Company has complied with all provisions of Article
6138A of the Texas Civil Statutes;
(r) none of the assets of the Company or the Subsidiaries
constitute, nor will such assets, as of the Closing Date, constitute,
"plan assets" under the Employee Retirement Income Security Act of
1974, as amended ("ERISA");
(s) the Company has not distributed and, prior to the later to
occur of (i) the Closing Date and (ii) completion of the distribution
of the Securities, will not distribute any offering material in
connection with the offering and sale of the Securities other than the
Registration Statement, the Prospectus or other materials, if any,
permitted by the Securities Act;
(t) the Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets; (iii) access to financial and corporate books and records is
permitted only in accordance with management's general or specific
authorization; and (iv) the recorded 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
9
businesses of the type proposed to be conducted by the Company and the
Subsidiaries; the Company has not received from any insurance company
written notice of any material defects or deficiencies affecting the
insurability of any such Properties; and
(w) any certificate signed by any officer of the Company and
delivered to the Underwriters or to counsel for the Underwriters in
connection with the offering of the Securities shall be deemed a
representation and warranty by the Company to the Underwriters as to
the matters covered thereby on the date of such certificate.
5. The Company covenants and agrees with the several Underwriters as
follows:
(a) to file the Prospectus (but only if the Underwriters have
not reasonably objected thereto by notice to the Company after having
been furnished a copy in reasonable time prior to filing) pursuant to
Rule 424 under the Securities Act not later than the Commission's close
of business on the second Business Day following the date of
determination of the offering price of the Securities;
(b) to deliver to each Underwriter and counsel for the
Underwriters, at the expense of the Company, a copy of the signed
Registration Statement (as originally filed) and each amendment
thereto, in each case including exhibits and, upon request, documents
incorporated by reference therein and, during the period mentioned in
paragraph (e) below, as many copies of the Prospectus (including all
amendments and supplements thereto) and documents incorporated by
reference therein as the Underwriters may reasonably request, when
filed with the Commission; and that each such Prospectus will, at the
time of such delivery, be identical to any electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to
the extent permitted by Regulation S-T;
(c) from the date hereof and during such period after the
first date of the public offering of the Securities that, in the
opinion of counsel for the Underwriters, a prospectus relating to the
Securities is required by law to be delivered in connection with sales
by an Underwriter or a dealer, to furnish to the Underwriters a copy of
any proposed amendment or supplement to the Registration Statement or
the Prospectus, for the Underwriters' review, and not to file any such
proposed amendment or supplement to which the Underwriters reasonably
object;
(d) to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities, and during such
same period, to advise the Underwriters promptly, and to confirm such
advice in writing, (i) when any amendment to the Registration Statement
shall have become effective, (ii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for any additional information, (iii)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation or
threatening of any proceeding for that purpose,
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and (iv) of the receipt by the Company of any notification with respect
to any suspension of the qualification of the Securities for offer and
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and to use its best efforts to prevent the
issuance of any such stop order or notification and, if issued, to
obtain as soon as possible the withdrawal thereof;
(e) if, during such period after the first date of the public
offering of the Securities, in the opinion of counsel for the
Underwriters, a prospectus relating to the Securities is required by
law to be delivered in connection with sales by an Underwriter or a
dealer, any event shall occur as a result of which it is necessary to
amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus to comply with law, forthwith to
prepare and, subject to Section 5(c), furnish, at the expense of the
Company, to the Underwriters and to the dealers (whose names and
addresses the Underwriters will furnish to the Company) to which
Securities may have been sold by the Underwriters and to any other
dealers upon request, such amendments or supplements to the Prospectus
as may be necessary so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances
when the Prospectus is delivered to a purchaser, be misleading or so
that the Prospectus will comply with law;
(f) to endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the
Underwriters shall reasonably request and to continue such
qualification in effect so long as reasonably required for distribution
of the Securities and to pay all fees and expenses (including fees and
disbursements of counsel to the Underwriters) reasonably incurred in
connection with such qualification and in connection with the
determination of the eligibility of the Securities for investment under
the laws of such jurisdictions as the Underwriters may designate;
provided that the Company shall not be required to file a general
consent to service of process in any jurisdiction;
(g) to make generally available to its security holders and to
the Underwriters as soon as practicable but not later than 15 months
after the effective date of the Registration Statement (as defined in
Rule 158(c)) an earnings statement covering a period of at least twelve
months beginning with the first fiscal quarter of the Company occurring
after the effective date of the Registration Statement, which shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule
158 of the Commission promulgated thereunder;
(h) so long as the Securities are outstanding, to furnish to
the Underwriters copies of all reports or other communications
(financial or other) furnished to holders of Securities, and copies of
any reports and financial statements furnished to or filed with the
Commission or any national securities exchange;
(i) during the period beginning on the date hereof and
continuing to and including the Business Day following the Closing
Date, not to offer, sell, contract to sell
11
or otherwise dispose of any debt securities of or guaranteed by the
Company which are substantially similar to the Securities without the
Underwriters' prior written consent; and
(j) to pay all costs and expenses incident to the performance
of its obligations hereunder, including without limiting the generality
of the foregoing, all costs and expenses (i) incident to the
preparation, issuance, execution, authentication and delivery of the
Securities, including any expenses of the Trustee, (ii) incident to the
preparation, printing and filing under the Securities Act of the
Registration Statement, the Prospectus and any preliminary prospectus
(including in each case all exhibits, amendments and supplements
thereto), (iii) incurred in connection with the registration or
qualification and determination of eligibility for investment of the
Securities under the laws of such jurisdictions as the Underwriters may
designate (including reasonable fees of counsel for the Underwriters
and their disbursements), (iv) related to any filing with the 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 the
Underwriters and dealers of copies of the Registration Statement and
the Prospectus, including mailing and shipping, as herein provided and
(vi) payable to rating agencies in connection with the rating of the
Securities; except as provided in clause (iii) above or in Section 7 or
in Section 10 hereof, the Company shall not be obligated to pay the
fees of counsel for the Underwriters and their disbursements.
6. The obligations of the several Underwriters hereunder shall be
subject to the following conditions:
(a) the representations and warranties of the Company
contained herein are true and correct on and as of the Closing Date as
if made on and as of the Closing Date and the Company shall have
complied with all agreements and all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date;
(b) the Prospectus shall have been filed with the Commission
pursuant to Rule 424 within the applicable time period prescribed for
such filing by the rules and regulations under the Securities Act; no
stop order suspending the effectiveness of the Registration Statement
shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to the Underwriters' satisfaction;
(c) subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have occurred any
downgrading, nor shall any notice have been given of (i) any intended
or potential downgrading or (ii) any review or possible change that
indicates anything other than a stable outlook, in the rating accorded
any securities of or guaranteed by the Company by any "nationally
recognized statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act; and the
Securities shall in no event be rated less than BBB- by Standard and
Poor's Ratings Services, BBB- by Fitch Ratings and Baa3 by Moody's
Investors Service, Inc.
12
(d) since the respective dates as of which information is
given in the Prospectus there shall not have been any material adverse
change or any development involving a material adverse change, in or
affecting the general affairs, business, prospects, management,
properties, financial position, shareholders' equity or results of
operations of the Company and its Subsidiaries, taken as a whole, the
effect of which in the judgment of the Underwriters makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner contemplated
in the Prospectus;
(e) the Underwriters shall have received on and as of the
Closing Date a certificate satisfactory to the Underwriters, of the
President or the Chief Executive Officer and the Chief Financial
Officer, or such other senior executive officer or officers of the
Company as are satisfactory to the Underwriters, to the effect set
forth in subsections (a) through (c) of this Section and to the further
effect that there has not occurred any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, business, prospects, management,
properties, financial position, shareholders' equity or results of
operations of the Company and its Subsidiaries taken as a whole from
that set forth or contemplated in the Registration Statement;
(f) Locke Liddell & Sapp LLP, counsel for the Company, shall
have furnished to the Underwriters its written opinion, dated the
Closing Date, in form and substance satisfactory to the Underwriters,
to the effect that:
(i) the Company has been duly organized and is
validly existing as a real estate investment trust under the
laws of the State of Texas, with power and authority to own
its properties and conduct its business as described in the
Prospectus as then amended or supplemented;
(ii) the Company is qualified for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification,
other than where the failure to be so qualified or in good
standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its
Subsidiaries taken as a whole;
(iii) each of the Subsidiaries has been duly
organized and is 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 or for investments in
securities that are not, individually or in the aggregate,
material to the Company
13
and its Subsidiaries taken as a whole, 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) each of the Subsidiaries has been duly qualified
as foreign corporations for the transaction of business and is
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 investigations,
actions, suits or proceedings pending or, to the best of such
counsel's knowledge, threatened to which the Company or any of
its Subsidiaries is or may be a party or to which any property
of the Company or any of its Subsidiaries is or may be the
subject which, if determined adversely to the Company or such
Subsidiary, could individually or in the aggregate reasonably
be expected to have a material adverse effect on the general
affairs, business, prospects, management, properties,
financial position, shareholders' equity or results of
operations of the Company and its Subsidiaries taken as a
whole; to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others; and such counsel does not
know of any contracts or other documents of a character
required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration
Statement or the Prospectus which are not filed or
incorporated by reference from another filing with the
Commission or described as required;
(vi) this Agreement has been duly authorized,
executed and delivered by the Company and is a valid and
binding agreement of the Company on the date hereof, except as
rights to indemnity and contribution hereunder may be limited
by applicable law;
(vii) the Securities have been duly authorized, and
when executed and authenticated in accordance with the terms
of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement,
will constitute valid and binding obligations of the Company
entitled to the benefits provided by the Indenture,
enforceable in accordance with their terms, except that the
enforceability thereof may be limited by or be subject to (a)
bankruptcy, reorganization, insolvency, fraudulent conveyance,
moratorium or other similar
14
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 the
Underwriters;
15
(xii) the statements in the Prospectus under the
captions "Description of Capital Shares," "Description of
Warrants," "Description of Debt Securities," and "Description
of the Notes," and other statements in the Prospectus and each
document incorporated by reference from the Company's Annual
Report on Form 10-K for the year ended December 31, 2001 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, (i) with the
exception of the Registration Rights Agreement dated as of
April 15, 1997, between the Company, Camden Operating, L.P.,
and certain listed investors therein, the Registration Rights
Agreement dated as of April 6, 1998 among Oasis Residential,
Inc., ISCO and IFT Properties, Ltd., as supplemented by the
Registration Rights Agreement dated as of March 13, 2002
between the Company and Edward Israel and the Registration
Rights Agreement dated as of March 13, 2002 between the
Company and Lonnie Levy, trustee of The Lonnie Levy Trust
dated February 5, 2001, the Registration Rights Agreement
dated as of April 2, 1998 between Oasis Residential, Inc. and
Merrill Lynch Private Finance Limited, as supplemented by the
Registration Rights Agreement dated as of March 13, 2002
between the Company and Merrill Lynch Private Finance Inc. and
a second Registration Rights Agreement dated as of March 13,
2002 between the Company and Merrill Lynch Private Finance
Inc., the Registration Rights Agreement dated as of February
23, 1999 among the Company, Belcrest Realty Corporation and
Belair Real Estate Corporation and the Registration Rights
Agreement dated as of August 13, 1999 between the Company and
Edgewater Equity Partners, as amended by Amendment to
Registration Rights Agreement dated as of September 7, 1999
and Second Amendment to Registration Rights Agreement dated as
of January 7, 2000, there are no contracts, agreements or
understandings between the Company and any person granting
such person the right to require the Company to file a
registration statement under the Securities Act with respect
to any securities of the Company owned by such person, and
(ii) no person has the right to require the Company to
register such securities pursuant to the Registration
Statement;
16
(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 the Commission,
(B) believes that (except for the financial statements
included therein as to which such counsel need express no
belief) the Registration Statement (including the documents
incorporated by reference therein) filed with the Commission
pursuant to the Securities Act relating to the Securities, at
the time of filing the Company's Form 10-K for the year ended
December 31, 2001 with the Commission, 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 and as of the
Closing Date, did not contain any untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and that the Prospectus as amended or
supplemented, if applicable, does not contain any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
In rendering such opinions, such counsel may rely (A) as to
matters involving the application of laws other than the laws of the
United States and the State of Texas, to the extent such counsel deems
proper and to the extent specified in such opinion, if at all, upon an
opinion or opinions (in form and substance reasonably satisfactory to
the Underwriters' counsel) of other counsel reasonably acceptable to
the Underwriters' counsel, familiar with the applicable laws; (B) as to
matters of fact, to the extent such counsel deems proper, on
certificates of responsible officers of the Company and certificates or
other written statements of officials of jurisdictions having custody
of documents respecting the corporate existence or good standing of the
Company. The opinion of such counsel for the Company shall state that
the opinion of any such other counsel is in form satisfactory to such
counsel and, in such counsel's opinion, the
17
Underwriters and they are justified in relying thereon. With respect to
the matters to be covered in subparagraph (xvi) above counsel may state
its opinion and belief is based upon their participation in the
preparation of the Registration Statement and the Prospectus and any
amendment or supplement thereto (other than the documents incorporated
by reference therein) and review and discussion of the contents thereof
(including the documents incorporated by reference therein) but is
without independent check or verification except as specified.
(g) Locke Liddell & Sapp LLP, tax counsel for the Company,
shall have delivered to the Underwriters its written opinion, dated the
Closing Date, in form and substance satisfactory to the Underwriters,
to the effect that:
(i) the Company met the requirements for
qualification and taxation as a real estate investment trust
("REIT") for the taxable years 1993 through 2001;
(ii) the Company's diversity of equity ownership and
proposed method of operation should allow it to qualify as a
REIT for its 2002 taxable year; and
(iii) the discussion contained under the caption
"Federal Income Tax Considerations and Consequences of Your
Investment" in the Prospectus forming a part of the
Registration Statement, accurately reflects existing law and
fairly addresses the material federal income tax issues
described therein.
In rendering such opinions, Locke Liddell & Sapp LLP may rely
as to matters of fact, to the extent they deem proper, on certificates
of officers of the Company and public officials so long as such counsel
states that no facts have come to the attention of such counsel which
lead them to believe that they are not justified in relying on such
certificates. In addition, Locke Liddell & Sapp LLP may state that
their opinions are based upon the procedures and assumptions set forth
in such opinion letter and that it is limited to the tax matters
specifically covered thereby and that they have not addressed any other
tax consequences.
(h) concurrently with the execution and delivery of this
Agreement, or on the Closing Date prior to payment and delivery of the
Securities, Deloitte & Touche LLP shall have furnished to the
Underwriters a letter, dated the date of its delivery, addressed to the
Underwriters and in form and substance satisfactory to the
Underwriters, confirming that they are independent accountants with
respect to the Company as required by the Securities Act and the rules
and regulations thereunder and with respect to the financial and other
statistical and numerical information contained in the Registration
Statement and the Prospectus or incorporated by reference therein. Such
letter shall contain information of the type customarily included in
accountants' comfort letters to underwriters. If such letter is
delivered as of the date of this Agreement, then at the Closing Date,
Deloitte & Touche LLP shall have furnished to the Underwriters a
letter, dated the date of its delivery, which shall confirm, on the
basis of a review in accordance with the procedures set forth in such
letter, that nothing has come to their attention during the period from
the date of the letter referred to in the prior sentence to a
18
date (specified in the letter) not more than three days prior to the
Closing Date which would require any change in their letter dated the
date hereof if it were required to be dated and delivered at the
Closing Date;
(i) the Underwriters shall have received on and as of the
Closing Date an opinion of Sidley Austin Brown & Wood LLP, counsel for
the Underwriters, with respect to the validity of the Indenture and the
Securities, the Registration Statement, the Prospectus and other
related matters as the Underwriters may reasonably request, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters; Sidley
Austin Brown & Wood LLP may rely upon the opinion of Locke Liddell &
Sapp LLP as to matters of Texas law; and
(j) on or prior to the Closing Date, the Company shall have
furnished to the Underwriters such further certificates and documents
confirming the representations and warranties contained herein and
related matters as the Underwriters shall reasonably request.
The opinions and certificates mentioned in this Agreement shall be
deemed to be in compliance with the provisions hereof only if they are in all
material respects satisfactory to the Underwriters and their counsel.
7. The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act, from
and against any and all losses, claims, damages and liabilities (including
without limitation the reasonable legal fees and other expenses (including
expenses of investigation and settlement) incurred in connection with any suit,
action or proceeding or any claim asserted) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with information
relating to the Underwriters furnished to the Company in writing by such
Underwriter expressly for use therein; provided, that the foregoing indemnity
with respect to any preliminary prospectus shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such Underwriter) if
such untrue statement or omission or alleged untrue statement or omission made
in such preliminary prospectus is eliminated or remedied in the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) and, if required by law, a copy of the Prospectus (as so
amended or supplemented) shall not have been furnished to such person asserting
any such losses, claims, damages or liabilities at or prior to the written
confirmation of the sale of such Securities to such person.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its trust managers, its officers who sign the
Registration Statement and each person
19
who controls the Company within the meaning of Section 15 of the Securities Act
and Section 20 of the Exchange Act, to the same extent as the foregoing
indemnity from the Company to each Underwriter, but only with reference to
information relating to such Underwriter furnished to the Company in writing by
such Underwriter expressly for use in the Registration Statement, the
Prospectus, any amendment or supplement thereto, or any preliminary prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel satisfactory to the Indemnified Person
to represent the Indemnified Person in such proceeding and shall pay the fees
and expenses of such counsel related to such proceeding. In any such proceeding,
any Indemnified Person shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel satisfactory to the Indemnified Person or
(iii) the named parties in any such proceeding (including any impleaded parties)
include both the Indemnifying Person and the Indemnified Person and
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. It is understood that the
Indemnifying Person shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of more
than one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as they are
incurred. Any such separate firm for the Underwriters and any such control
persons of Underwriters shall be designated in writing by the Underwriters and
any such separate firm for the Company, its trust managers, its officers who
sign the Registration Statement and such control persons of the Company or
authorized representatives shall be designated in writing by the Company. The
Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the Indemnifying Person agrees to
indemnify any Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an Indemnified Person shall have requested an Indemnifying Person
to reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by the third sentence of this paragraph, the Indemnifying Person
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such Indemnifying Person of the aforesaid request and (ii)
such Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Person, unless such
settlement (i) includes an unconditional release of such Indemnified Person from
all liability on claims that are the subject matter of such proceeding and (ii)
does not include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any Indemnified Person.
20
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and the Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other shall be deemed
to be in the same respective proportions as the net proceeds from the offering
of such Securities (before deducting expenses) received by the Company and the
total underwriting discounts and the commissions received by the Underwriters
bear to the aggregate public offering price of the Securities. The relative
fault of the Company on the one hand and the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligation to
contribute pursuant to this Section 7 shall be several in proportion to their
respective underwriting commitments as set forth in Schedule I hereto and not
joint.
The indemnity and contribution agreements contained in this Section 7
are in addition to any liability which the Indemnifying Persons may otherwise
have to the Indemnified Persons referred to above.
21
The indemnity and contribution agreements contained in this Section 7
and the representations, warranties and covenants of the Company set forth in
this Agreement shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter or by or on
behalf of the Company, its officers or directors or any other person controlling
the Company and (iii) acceptance of and payment for any of the Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Underwriters, by notice given to
the Company, if after the execution and delivery of this Agreement and prior to
the Closing Date (i) the Company shall have failed, refused or been unable, at
or prior to the Closing Date, to perform any agreement on its part to be
performed hereunder, (ii) any other condition of the Underwriters' obligations
hereunder is not fulfilled, (iii) there shall have occurred, since the
respective dates as of which information is given in the Registration Statement
and the Prospectus, any material adverse change or any development involving a
prospective material adverse change in or affecting the condition, financial or
otherwise, of the Company or the earnings, business affairs, properties,
management or business prospects of the Company, whether or not arising in the
ordinary course of business, (iv) trading generally shall have been suspended or
materially limited on or by the New York Stock Exchange, (v) trading of any
securities of or guaranteed by the Company shall have been suspended on any
exchange or in any over-the-counter market, (vi) a general moratorium on
commercial banking activities in New York or Texas shall have been declared by
either Federal, Texas or New York State authorities; or there shall have
occurred a material disruption in commercial banking or securities settlement or
clearance services in the United States, (vii) there has occurred any
downgrading or notice of any intended or potential downgrading or any review or
possible change that indicates anything other than a stable outlook in the
rating of the Company's debt securities by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g)(2)
under the Securities Act) or (viii) there shall have occurred any outbreak or
escalation of hostilities involving the United States or the declaration by the
United States of a national emergency or war or the occurrence of any other
calamity or crisis or any change in financial, political or economic conditions
in the United States that, in the judgment of the Underwriters, is material and
adverse and which, in the judgment of the Underwriters, makes it impracticable
or inadvisable to proceed with the offering, sale or delivery of the Securities
on the terms and in the manner contemplated in the Prospectus.
9. If, on the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase Securities which it or they have agreed to purchase
under this Agreement, and the aggregate principal amount of Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of the
Securities, the other Underwriters shall be obligated severally in the
proportions that the principal amount of Securities set forth opposite their
respective names in Schedule I hereto bears to the aggregate principal amount of
Securities set forth opposite the names of all such non-defaulting Underwriters,
or in such other proportions as the Underwriters may specify, to purchase the
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on such date; provided that in no event shall the
principal amount of Securities that any Underwriter has agreed to purchase
pursuant to Section 1 be increased pursuant to this Section 9 by an amount in
excess of one-ninth of such principal amount of
22
Securities without the written consent of such Underwriter. If, on the Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase
Securities and the aggregate principal amount of Securities with respect to
which such default occurs is more than one-tenth of the aggregate principal
amount of Securities to be purchased, and arrangements satisfactory to the
Underwriters and the Company for the purchase of such Securities are not made
within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the Company. In any
such case either the Underwriters or the Company shall have 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 contemplated hereunder.
11. This Agreement shall inure to the benefit of and be binding upon
the Company, the Underwriters, any controlling persons referred to herein and
their respective successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. No purchaser of Securities
from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
12. All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given if mailed or transmitted by any
standard form of telecommunication. Notices to the Underwriters shall be given
at c/o J.P. Morgan Securities Inc., 270 Park Avenue, 7th Floor, New York, New
York 10017-2070, Attention: Transaction Execution Group. Notices to the Company
shall be given to it at Three Greenway Plaza, Suite 1300, Houston, Texas 77046,
Attention: G. Steven Dawson, Senior Vice President - Finance, Chief Financial
Officer, Treasurer and Secretary.
23
13. Miscellaneous. This Agreement may be signed in counterparts, each
of which shall be an original and all of which together shall constitute one and
the same instrument. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to the
conflicts of laws provisions thereof.
Very truly yours,
CAMDEN PROPERTY TRUST
By:
-------------------------------
Name:
Title:
Accepted: May 29, 2002
J.P. MORGAN SECURITIES INC.
COMMERZBANK CAPITAL MARKETS CORP.
BANC OF AMERICA SECURITIES LLC
CREDIT SUISSE FIRST BOSTON CORPORATION
By: J.P. Morgan Securities Inc.
By:
-----------------------------------
Name:
Title:
24
SCHEDULE I
<Table>
<Caption>
Principal Amount
Underwriters: of Notes
----------------
J.P. MORGAN SECURITIES INC $ 75,000,000
COMMERZBANK CAPITAL MARKETS CORP 37,500,000
BANC OF AMERICA SECURITIES LLC 18,750,000
CREDIT SUISSE FIRST BOSTON CORPORATION 18,750,000
------------
$150,000,000
============
</Table>
<Table>
Underwriting Agreement dated: May 29, 2002
Registration Statement No.: 333-92959
Indenture: Indenture dated as of February 15, 1996 and Supplemental Indenture
dated as of February 15, 1996, both between Camden Property Trust
(the "Company") and The Bank of New York Trust Company of Florida,
N.A. (formerly known as U.S. Trust Company of Texas, N.A.)
Title of Securities: 5.875% Notes due 2007 (the "Notes")
Currency: United States Dollars
Aggregate Principal Amount: $150,000,000
Current Ratings: Moody's Investors Service, Inc.: Baa2; Standard & Poor's Ratings
Services: BBB; Fitch Ratings: BBB.
Price to Public: 99.532% of the principal amount of the Notes, plus accrued interest
from June 3, 2002.
Purchase Price: 98.932% of the principal amount of the Notes, plus accrued interest
from June 3, 2002.
Form: Global Note
Maturity: June 1, 2007
Interest Payment Dates: Semi-annually on June 1 and December 1, commencing on December 1,
2002.
</Table>
25
<Table>
Redemption: Optional redemption by the Company of some or all of the Notes on
one or more occasions prior to maturity at a price equal to the sum
of (a) 100% of the principal amount of the Notes and (b) a
make-whole premium, together with accrued and unpaid interest up to
but not including the redemption date.
Sinking Fund Provisions: None
Denomination and Form: The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof.
Defeasance and Covenant Defeasance: Sections 1402 and 1403 of the Indenture contain provisions for
defeasance at any time of (a) the entire indebtedness of the
Company on the Notes and (b) certain restrictive covenants, which
shall include all covenants contained in the Supplemental Indenture
dated as of February 15, 1996, and the related defaults and Events
of Default applicable to the Company, in each case, upon compliance
by the Company with certain conditions set forth in the Indenture,
which provisions apply to the Notes.
Seniority and Certain Other Provisions: The Notes shall rank on a parity with the Company's senior
indebtedness. The provisions of the Supplemental Indenture dated as
of February 15, 1996, including the restrictions of Section 1012
set forth therein, shall apply to the Notes.
Definitions and Other Provisions: As per Prospectus Supplement dated May 29, 2002.
Closing Date, Time and Location: June 3, 2002, 9:00 a.m., New York time, at the offices of Sidley
Austin Brown & Wood LLP in New York, New York.
</Table>
26
SCHEDULE II
SUBSIDIARIES OF CAMDEN PROPERTY TRUST
Bagby Apartments, LLC
CPT-GP, Inc.
CPT-LP, Inc.
Camden Acquisition, Inc.
Camden Builders, Inc. (3)
Camden Realty, Inc. (3)
Camden Development, Inc.
Camden Housing, Inc.
Camden Operating, L.P. (1) (2)
Camden Technology, Inc. (3)
Camden USA, Inc. (1)
Denver West Apartments, LLC (2)
Lee Vista Apartments, LLC
Oasis California, Inc.
Oasis Martinique, LLC (2)
ORI, Inc.
ORI - Colorado, Inc.
ORI Park, Inc.
ORI Wexford, Inc.
Pecos Ranch, LLC
Salt River, LLC
Sierra-Nevada Multifamily Investments, LLC (2)
SRG/Camden II, LLC (2)
Ybor City Apartments, LLC
2800 Main, LLC
(1) Significant subsidiary as defined in Rule 1-02(w) of Regulation S-X.
(2) Not wholly-owned by Camden Property Trust.
(3) Taxable REIT subsidiary.
27