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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): July 14, 1998
----------------
COLONIAL REALTY LIMITED PARTNERSHIP
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 0-20707 63-1098468
- ---------------------------- ----------------------- ----------------------
(State or other jurisdiction Commission File Number: (IRS Employer
of incorporation) Identification Number)
2101 Sixth Avenue North
Suite 750
Birmingham, Alabama 35202
- ------------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (205) 250-8700
-----------------
Not applicable
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(Former name or former address, if changed since last report)
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COLONIAL PROPERTIES TRUST
Item 5 - Other Events
Attached as Exhibits to this form are the documents listed below:
<TABLE>
<CAPTION>
Exhibit Document
------- --------
<S> <C>
1.1 Underwriting Agreement dated July 9, 1998, by and among
Colonial Realty Limited Partnership and Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Lehman
Brothers Inc. and Morgan Stanley & Co. Incorporated.
1.2 Terms Agreement dated July 9, 1998, by and among Colonial
Realty limited Partnership and Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated, Lehman Brothers
Inc. and Morgan Stanley & Co. Incorporated.
5.1 Opinion of Hogan & Hartson L.L.P. regarding the legality of
the Notes
5.2 Opinion of Sirote & Permutt, P.C., regarding Alabama law
</TABLE>
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
COLONIAL REALTY LIMITED
PARTNERSHIP
By: Colonial Properties Holding Company,
Inc., its General Partner
Date: July 17, 1998 By: /s/ Howard B. Nelson, Jr.
-------------------------
Howard B. Nelson, Jr.,
Chief Financial Officer and
Assistant Secretary
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EXHIBIT INDEX
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<TABLE>
<CAPTION>
Exhibit Description Page
------- ----------- ----
<S> <C>
1.1 Underwriting Agreement dated July 9, 1998, by and
among Colonial Realty Limited Partnership and
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner
& Smith Incorporated, Lehman Brothers Inc. and
Morgan Stanley & Co. Incorporated.
1.2 Terms Agreement dated July 9, 1998, by and among
Colonial Realty limited Partnership and Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Lehman Brothers Inc. and Morgan
Stanley & Co. Incorporated.
5.1 Opinion of Hogan & Hartson L.L.P. regarding the
legality of the Notes
5.2 Opinion of Sirote & Permutt, P.C., regarding
Alabama law
</TABLE>
<PAGE>
EXHIBIT 1.1
COLONIAL REALTY LIMITED PARTNERSHIP
(a Delaware Limited Partnership)
Debt Securities
UNDERWRITING AGREEMENT
----------------------
July 9, 1998
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
LEHMAN BROTHERS INC.
MORGAN STANLEY & CO. INCORPORATED
c/o MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
250 Vesey Street
New York, NY 10281-1326
Ladies and Gentlemen:
Colonial Realty Limited Partnership, a limited partnership organized
under the laws of Delaware (the "Operating Partnership"), proposes to issue and
sell debt securities ("Securities"), from time to time, in one or more offerings
on terms to be determined at the time of sale. The Securities will be issued
under an indenture dated as of July 22, 1996 between the Operating Partnership
and Bankers Trust Company, as trustee (the "Indenture"). Colonial Properties
Trust, an Alabama real estate investment trust (the "Company"), is a limited
partner and the indirect general partner of the Operating Partnership through
its subsidiary, Colonial Properties Holding Company, Inc., an Alabama
Corporation ("CPHC"). As used herein, "you" and "your", unless the context
otherwise requires, shall mean the parties to whom this underwriting agreement
(this "Agreement") is addressed together with the other parties, if any,
identified in the applicable Terms Agreement (as defined herein) as additional
co-managers with respect to Underwritten Securities (as hereinafter defined)
purchased pursuant thereto.
Whenever the Operating Partnership determines to make an offering of
Securities through you or through an underwriting syndicate managed by you, the
Operating Partnership will enter into an agreement (the "Terms Agreement")
providing for the sale of such Securities (the "Underwritten Securities") to,
and the purchase and offering thereof by, you and such other underwriters, if
any, selected by you as have authorized you to enter into such Terms Agreement
on their behalf (the "Underwriters", which term shall include you whether acting
alone in the sale of the Underwritten Securities or as a member of an
underwriting syndicate and any
<PAGE>
Underwriter substituted pursuant to Section 10 hereof). The Terms Agreement
relating to the offering of Underwritten Securities shall specify the principal
amount of Underwritten Securities of each series to be issued (the "Underwritten
Securities"), the names of the Underwriters participating in such offering
(subject to substitution as provided in Section 10 hereof), the principal amount
of Underwritten Securities which each such Underwriter severally agrees to
purchase, the names of such of you or such other Underwriters acting as
co-managers, if any, in connection with such offering, the price at which the
Underwritten Securities are to be purchased by the Underwriters from the
Operating Partnership, the initial public offering price, if any, the time, date
and place of delivery and payment, any delayed delivery arrangements and any
other variable terms of the Underwritten Securities (including but not limited
to, aggregate principal amount, maturity date, interest rate or formula and
timing of payments thereof, current ratings, conversion, exchange or redemption
provisions and any other variable terms which the Indenture contemplates may be
set forth in the Securities). The Terms Agreement, which shall be substantially
in the form of Exhibit A hereto, may take the form of an exchange of any
standard form of written telecommunication between you and the Operating
Partnership. Each offering of Underwritten Securities through you or through an
underwriting syndicate managed by you will be governed by this Agreement, as
supplemented by the applicable Terms Agreement.
The Operating Partnership has filed with the Securities and Exchange
Commission (the "Commission") registration statements on Form S-3 (No. 333-14401
and 333-42049) for the registration of up to $450,000,000 of the Operating
Partnership's debt securities, under the Securities Act of 1933, as amended (the
"1933 Act"), and the offering thereof from time to time in accordance with Rule
415 of the rules and regulations of the Commission under the 1933 Act (the "1933
Act Regulations"), and the Operating Partnership has filed such amendments
thereto as may have been required prior to the execution of the applicable Terms
Agreement. Such registration statements (as amended, if applicable) have been
declared effective by the Commission and the Indenture qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act"). Such registration statements
and the prospectus constituting a part thereof, in each case as supplemented by
a prospectus supplement relating to the offering of Underwritten Securities (the
"Prospectus Supplement"), including in each case all documents incorporated
therein by reference and the information, if any, deemed to be a part thereof
pursuant to Rule 430A(b) or Rule 434 of the 1933 Act Regulations as from time to
time amended or supplemented pursuant to the 1933 Act, the Securities Exchange
Act of 1934, as amended (the "1934 Act"), or otherwise, are collectively
referred to herein as the "Registration Statement" and the "Prospectus",
respectively; provided, however, that a Prospectus Supplement shall be deemed to
have supplemented the Prospectus only with respect to the offering of
Underwritten Securities to which it relates. All references in this Agreement to
financial statements and schedules and other information which is "contained,"
"included" or "stated" in the Registration Statement or the Prospectus (and all
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is or is deemed
to be incorporated by reference in the Registration Statement or the Prospectus,
as the case may be; and all references in this Agreement to amendments or
supplements to the Registration Statement or the Prospectus shall be deemed to
mean and include the filing of any document under the 1934 Act which is or is
deemed to be incorporated by reference in the Registration Statement or the
Prospectus, as the case may be. If the Operating Partnership elects to rely on
Rule 434 under the 1933 Act Regulations, all references to the Prospectus shall
be deemed to include, without limitation, the form of prospectus and the
abbreviated term sheet, taken
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<PAGE>
together, provided to the Underwriters by the Operating Partnership in reliance
on Rule 434 under the 1933 Act (the "Rule 434 Prospectus"). If the Operating
Partnership files a registration statement to register a portion of the debt
securities and relies on Rule 462(b) for such registration statement to become
effective upon filing with the Commission (the "Rule 462 Registration
Statement"), then any reference to "Registration Statement" herein shall be
deemed to be to each of the registration statements referred to above (No.
333-14401 and 333-42049) and the Rule 462 Registration Statement, as each such
registration statement may be amended pursuant to the 1933 Act.
Section 1. Representations and Warranties.
(a) The Operating Partnership represents and warrants to you, as of the
date hereof, and to you and each other Underwriter named in the applicable Terms
Agreement, as of the date thereof (in each case, a "Representation Date") and as
of each Closing Time (as hereinafter defined), as follows:
(i) The Registration Statement and the Prospectus, at the
time the Registration Statement became effective and at each time
thereafter on which the Operating Partnership filed an Annual Report on
Form 10-K with the Commission, complied, and as of each Representation
Date will comply, in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations; the Registration Statement, at
the time the Registration Statement became effective and at each time
thereafter on which the Operating Partnership filed an Annual Report on
Form 10-K with the Commission, did not, and at each time thereafter on
which any amendment to the Registration Statement becomes effective or
the Operating Partnership files an Annual Report on Form 10-K with the
Commission and as of each Representation Date, and at the Closing Time,
will not, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; and the Prospectus, as of
the date hereof, does not, and as of each Representation Date will not,
include an 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;
provided, however, that the representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Operating Partnership in
writing by any Underwriter through you expressly for use in the
Registration Statement or Prospectus or to that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification under the 1939 Act (Form T-1) of the
trustee under the Indenture.
(ii) The accountants who certified the financial statements
and supporting schedules included or incorporated by reference in the
Registration Statement and the Prospectus are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations;
and there have been no disagreements with any accountants or
"reportable events" (as defined in Item 304 of Regulation S-K
promulgated by the Commission), in either case as required to be
disclosed in the Prospectus or elsewhere pursuant to such Item 304.
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<PAGE>
(iii) The historical financial statements of the Operating
Partnership included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the financial position of
the Operating Partnership and its consolidated subsidiaries as at the
dates indicated and the results of operations for the periods
specified; except as otherwise stated in the Registration Statement and
the Prospectus, said financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis and comply with the applicable accounting requirements
of the 1933 Act (including, without limitation, Rule 3-14 of Regulation
S-X promulgated by the Commission), and all adjustments necessary for a
fair presentation of the results for such periods have been made; the
supporting schedules included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the
information required to be stated therein; and the selected financial
data (both historical and pro forma) included or incorporated by
reference in the Registration Statement and the Prospectus present
fairly the information shown therein and have been compiled on a basis
consistent with the related financial statements presented therein.
(iv) The 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
generally accepted accounting principles; the pro forma consolidated
financial statements included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the pro forma
financial position of the Operating Partnership and its consolidated
subsidiaries as of the dates indicated and the results of operations
for the periods specified; and such pro forma financial statements have
been prepared in accordance with generally accepted accounting
principles applied on a basis consistent with the audited financial
statements of the Operating Partnership included or incorporated by
reference in the Registration Statement and the Prospectus, the
assumptions on which such pro forma financial statements have been
prepared are reasonable and are set forth in the notes thereto, and
such pro forma financial statements have been prepared, and the pro
forma adjustments set forth therein have been applied, in accordance
with the applicable accounting requirements of the 1933 Act and the
1933 Act Regulations (including, without limitation, Regulation S-X
promulgated by the Commission), and such pro forma adjustments have
been properly applied to the historical amounts in the compilation of
such statements.
(v) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (a) there has been no material adverse change
in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Operating Partnership and its
Subsidiaries (which term, as used in this Agreement, includes
partnerships and other entities, including Colonial Properties Services
Limited Partnership (the "Management Partnership"), and includes direct
and indirect Subsidiaries, if any) considered as one enterprise, or any
of the real property or improvements thereon owned by either the
Operating Partnership or any of its Subsidiaries (each individually a
"Property" and collectively the "Properties"), whether or not arising
in the ordinary course of business, (b) no material casualty loss or
material condemnation or other material adverse event
4
<PAGE>
with respect to any of the Properties has occurred, and (c) there have
been no transactions entered into by the Operating Partnership or any
of its Subsidiaries, other than those in the ordinary course of
business, which are material with respect to the Operating
Partnership, and its Subsidiaries considered as one enterprise.
(vi) The Agreement of Limited Partnership of the Operating
Partnership, as amended and restated (the "Agreement of Limited
Partnership"), has been duly and validly authorized, executed and
delivered by CPHC, and is a valid and binding agreement of CPHC and
such limited partners of the Operating Partnership, enforceable in
accordance with its terms, except as limited by (a) the effect of
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to or affecting the rights or
remedies of creditors or (b) the effect of general principles of
equity, whether enforcement is considered in a proceeding in equity or
at law, and the discretion of the court before which any proceeding
therefor may be brought. The Operating Partnership has been duly formed
and is validly existing and is in good standing under the laws of the
State of Delaware, has power and authority to own, lease and operate
its Properties and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or to be in
good standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Operating Partnership and its Subsidiaries
considered as one enterprise.
(vii) Each Subsidiary of the Operating Partnership has been
duly formed and is validly existing and in good standing under the laws
of the jurisdiction of its organization, has power and authority to
own, lease and operate its Properties and to conduct its business as
described in the Prospectus and is duly qualified to transact business
and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify or to be in good standing would not have a
material adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Operating
Partnership and its Subsidiaries considered as one enterprise. Except
as otherwise stated in the Prospectus, all of the issued and
outstanding capital stock or other ownership interests in each such
Subsidiary have been duly authorized and validly issued, are fully paid
and non-assessable and are owned by the Operating Partnership, directly
or through Subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity, except for
security interests granted in respect of indebtedness of the Operating
Partnership or any of its Subsidiaries and described in the Prospectus.
(viii) Each of the partnership agreements to which the
Operating Partnership or any of its Subsidiaries is a party has been
duly authorized, executed and delivered by the parties thereto and
constitutes the valid agreement thereof, enforceable in accordance with
its terms, except as limited by (a) the effect of bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting the rights or remedies of
creditors or (b) the effect of general principles of
5
<PAGE>
equity, whether enforcement is considered in a proceeding in equity or
at law, and the discretion of the court before which any proceeding
therefor may be brought; and the execution, delivery and performance
of any of such agreements by the Operating Partnership or any of its
Subsidiaries, as applicable, did not, at the time of execution and
delivery, and does not constitute a breach of, or default under, the
charter, by-laws, partnership agreement (or other organizational
documents) of such party or any material contract, lease or other
instrument to which such party is a party or by which its properties
may be bound or any law, administrative regulation or administrative
or court decree.
(ix) The authorized, issued and outstanding liabilities and
partners' capital of the Operating Partnership is as set forth in the
applicable prospectus supplement under "Capitalization."
(x) The Underwritten Securities being sold pursuant to this
Agreement and the applicable Terms Agreement have, as of each
Representation Date, been duly authorized by the Operating Partnership,
and such Underwritten Securities have been duly authorized for issuance
and sale pursuant to this Agreement and such Terms Agreement and the
Indenture, and such Underwritten Securities, when issued and delivered
by the Operating Partnership pursuant to this Agreement against payment
of the consideration set forth in such Terms Agreement or any Delayed
Delivery Contract (as hereinafter defined), will be valid and legally
binding obligations of the Operating Partnership, enforceable in
accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency or other similar laws relating to or
affecting creditors' rights generally and by general equity principles
(regardless of whether enforcement is considered in a proceeding in
equity or at law); and the Underwritten Securities being sold pursuant
to the applicable Terms Agreement conform in all material respects to
all statements relating thereto contained in the Prospectus.
(xi) The Indenture has been duly authorized, executed and
delivered by the Operating Partnership and constitutes a valid and
legally binding agreement of the Operating Partnership enforceable in
accordance with its terms, except as enforcement thereof may be limited
by bankruptcy, insolvency or other similar laws relating to or
affecting creditors' rights generally and by general equity principles
(regardless of whether enforcement is considered in a proceeding in
equity or at law).
(xii) None of the Operating Partnership or any of its
Subsidiaries is in violation of its charter, by-laws, partnership
agreement or other organizational documents or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Operating
Partnership or any of its Subsidiaries is a party or by which it or any
of them may be bound, or to which any of the property or assets of the
Operating Partnership or any of its Subsidiaries is subject, except for
any such violation or default that would not have a material adverse
effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Operating Partnership and
its Subsidiaries considered as one enterprise, and the execution,
delivery and performance of this Agreement, the applicable Terms
Agreement
6
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or the Indenture, and the consummation of the transactions
contemplated herein and therein and compliance by the Operating
Partnership with obligations hereunder and thereunder have been duly
authorized by all necessary corporate, trust or partnership action,
and will not materially conflict with or constitute a material breach
of, or material default under, or result in the creation or imposition
of any material lien, charge or encumbrance upon any property or
assets of the Operating Partnership or any of its Subsidiaries
pursuant to, any contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Operating Partnership or any of
its Subsidiaries is a party or by which any of them may be bound, or
to which any of the property or assets of the Operating Partnership or
any of its Subsidiaries is subject, nor will such action result in any
violation of the charter, by-laws, the partnership agreement or other
organizational documents of the Operating Partnership or any of its
Subsidiaries, or any applicable law, administrative regulation or
administrative or court decree.
(xiii) None of the Operating Partnership or any of its
Subsidiaries is required to be registered as an "investment company"
under the Investment Company Act of 1940, as amended (the "1940 Act").
(xiv) There is no action, suit or proceeding before or by
any court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Operating Partnership or any of
its Subsidiaries threatened against or affecting the Operating
Partnership or any of its Subsidiaries which is required to be
disclosed in the Prospectus (other than as disclosed therein), or which
might result in any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Operating Partnership and its Subsidiaries considered
as one enterprise, or which might materially and adversely affect the
property or assets thereof or which might materially and adversely
affect the consummation of this Agreement, the applicable Terms
Agreement, or the Indenture, or the transactions contemplated herein or
therein; all pending legal or governmental proceedings to which the
Operating Partnership or any of its Subsidiaries is a party or of which
any property or assets of the Operating Partnership or any of its
Subsidiaries is subject which are not described in the Prospectus,
including ordinary routine litigation incidental to the business, are,
considered in the aggregate, not material to the condition, financial
or otherwise, or the earnings, business affairs or business prospects
of the Operating Partnership and its Subsidiaries considered as one
enterprise; and there are no contracts or documents of the Operating
Partnership or any of its Subsidiaries which are required to be filed
as exhibits to the Registration Statement by the 1933 Act or by the
1933 Act Regulations which have not been so filed.
(xv) The Operating Partnership and its Subsidiaries own or
possess any trademarks, service marks, trade names or copyrights
required in order to conduct their respective businesses as described
in the Prospectus, other than those the failure to possess or own would
not have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of
the Operating Partnership and its Subsidiaries considered as one
enterprise.
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(xvi) No authorization, approval, permit or consent of any
court or governmental authority or agency is necessary in connection
with the consummation by the Operating Partnership of the transactions
contemplated by this Agreement, the applicable Terms Agreement, or the
Indenture, except such as have been obtained or as may be required
under the 1933 Act or the 1933 Act Regulations, the 1939 Act, state
securities laws, real estate syndication laws or under the rules and
regulations of the National Association of Securities Dealers, Inc.
(xvii) The Operating Partnership and its Subsidiaries
possess such certificates, authorizations or permits issued by the
appropriate state, federal or foreign regulatory agencies or bodies
necessary to conduct their respective businesses as described in the
Prospectus, other than those the failure to possess or own would not
have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of
the Operating Partnership and its Subsidiaries considered as one
enterprise, and neither the Operating Partnership nor any of its
Subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would materially and adversely affect the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Operating Partnership and its Subsidiaries
considered as one enterprise.
(xviii) The Operating Partnership has full right, power and
authority under its organizational documents to enter into this
Agreement and the applicable Terms Agreement and this Agreement has
been, and as of each Representation Date, the applicable Terms
Agreement and the Delayed Delivery Contracts, if any, will have been,
duly authorized, executed and delivered by the Operating Partnership.
(xix) The documents incorporated or deemed to be
incorporated by reference in the Prospectus, at the time they were or
hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission under the 1934 Act (the "1934
Act Regulations"), and, when read together with the other information
in the Prospectus, at the time the Registration Statement became
effective and as of the applicable Representation Date or Closing Time
(as defined herein) or during the period specified in Section 3(f), did
not and will not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(xx) There are no persons with registration or other
similar rights to have any securities registered pursuant to the
Registration Statement.
(xxi) None of the Operating Partnership or any of its
Subsidiaries, or any of the officers, directors, trustees or partners
thereof has taken nor will any of them take, directly or indirectly,
any action resulting in a violation of Regulation M under the 1934 Act
or designed to cause or result in, or which has constituted or which
reasonably might
8
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be expected to constitute, the stabilization or manipulation of the
price of the Underwritten Securities or facilitation of the sale or
resale of the Underwritten Securities.
(xxii) Except as otherwise disclosed in the Prospectus and
except as would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Operating Partnership and its Subsidiaries considered
as one enterprise: (a) except for the portions of Macon Mall and
Orlando Fashion Square that are leased by the Operating Partnership
pursuant to long-term subordinated ground leases, the Operating
Partnership or its Subsidiaries have good and marketable title in fee
simple to all real property and improvements described in the
Prospectus as being owned in fee and, at the Closing Time, the
Operating Partnership and its Subsidiaries will have good and
marketable title in fee simple to all real property and improvements as
described in the Prospectus as being owned in fee; (b) all liens,
charges, encumbrances, claims or restrictions on or affecting the real
property and improvements owned by the Operating Partnership or any of
its Subsidiaries which are required to be disclosed in the Prospectus
are disclosed therein; (c) none of the Operating Partnership or any of
its Subsidiaries, or to the knowledge of the Operating Partnership, any
lessee of any portion of the real property or improvements owned by the
Operating Partnership or any of its Subsidiaries, is in default under
any of the leases pursuant to which the Operating Partnership or any of
its Subsidiaries leases such real property or improvements, and the
Operating Partnership and its Subsidiaries know of 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; (d) all the real
property and improvements owned by the Operating Partnership or its
Subsidiaries comply with all applicable codes and zoning laws and
regulations; and (e) the Operating Partnership and its Subsidiaries
have no knowledge of any pending or threatened condemnation, zoning
change or other proceeding or action that would in any manner affect
the size of, use of, improvements on, construction on, or access to any
of the real property or improvements owned by the Operating
Partnership, any of its Subsidiaries or the Operating Partnership.
(xxiii) The Operating Partnership or its Subsidiaries has
adequate title insurance on each Property owned in fee by the Operating
Partnership or its Subsidiaries.
(xxiv) Except as otherwise disclosed in the Prospectus, the
Operating Partnership has no knowledge of: (a) the unlawful presence of
any hazardous substances, hazardous materials, toxic substances or
waste materials (collectively, "Hazardous Materials") on any of the
Properties or (b) any unlawful spills, releases, discharges or disposal
of Hazardous Materials that have occurred or are presently occurring on
or from the Properties as a result of any construction on or operation
and use of the Properties, which presence or occurrence would have a
material adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Operating
Partnership and its Subsidiaries considered as one enterprise; and in
connection with the construction on or operation and use of the
Properties, the Operating Partnership has no knowledge of any material
failure to comply with all applicable local, state and federal
environmental laws, regulations, ordinances and administrative and
judicial orders relating to the generation, recycling, reuse, sale,
storage, handling, transport and disposal of any Hazardous Materials
that could have a material adverse effect on the condition,
9
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financial or otherwise, or the earnings, business affairs or business
prospects of the Operating Partnership and its Subsidiaries considered
as one enterprise.
(b) Any certificate signed by any officer of the Company as indirect
general partner of the Operating Partnership and delivered to you or to counsel
for the Underwriters in connection with the offering of the Underwritten
Securities shall be deemed a representation and warranty by the Operating
Partnership, as the case may be, to each Underwriter participating in such
offering as to the matters covered thereby on the date of such certificate.
Section 2. Purchase and Sale.
------------------
(a) The several commitments of the Underwriters to purchase the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to have been made on the basis of the representations and warranties
herein contained and shall be subject to the terms and conditions herein set
forth.
(b) Payment of the purchase price for, and delivery of, the
Underwritten Securities to be purchased by the Underwriters shall be made at the
office of Brown & Wood LLP, 58th Floor, One World Trade Center, New York, New
York 10048-0557, or at such other place as shall be agreed upon by you and the
Operating Partnership, at 9:00 A.M., New York City time, on the third business
day (unless postponed in accordance with the provisions of Section 10) following
the date of the applicable Terms Agreement or, if pricing takes place after 4:30
p.m. New York City time on the date of the applicable Terms Agreement, on the
fourth business day (unless postponed in accordance with the provisions of
Section 10) following the date of the applicable Terms Agreement or at such
other time as shall be agreed upon by you and the Operating Partnership (each
such time and date being referred to as a "Closing Time"). Unless otherwise
specified in the applicable Terms Agreement, payment shall be made by wire
transfer of immediately available funds to the Operating Partnership against
delivery to you for the respective accounts of the Underwriters for the
Underwritten Securities to be purchased by them. The Underwritten Securities
shall be in such authorized denominations and registered in such names as you
may request in writing at least one business day prior to the applicable Closing
Time or Date of Delivery, as the case may be. The Underwritten Securities, which
may be in temporary form, will be made available for examination and packaging
by you on or before the first business day prior to the Closing Time or Date of
Delivery, as the case may be.
(c) If authorized by the applicable Terms Agreement, the Underwriters
named therein may solicit offers to purchase Underwritten Securities from the
Operating Partnership pursuant to delayed delivery contracts ("Delayed Delivery
Contracts") substantially in the form of Exhibit B hereto with such changes
therein as the Operating Partnership may approve. As compensation for arranging
Delayed Delivery Contracts, the Operating Partnership will pay to you at Closing
Time, for the respective accounts of the Underwriters, a fee specified in the
applicable Terms Agreement for each of the Underwritten Securities for which
Delayed Delivery Contracts are made at the Closing Time as is specified in the
applicable Terms Agreement. Any Delayed Delivery Contracts are to be with
institutional investors of the types described in the Prospectus. At the Closing
Time, the Operating Partnership will enter into Delayed Delivery Contracts (for
not less than the minimum principal amount of Underwritten Securities per
Delayed Delivery Contract specified in the applicable Terms Agreement) with all
purchasers proposed by the
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Underwriters and previously approved by the Operating Partnership as provided
below, but not for an aggregate principal amount of Underwritten Securities in
excess of that specified in the applicable Terms Agreement. The Underwriters
will not have any responsibility for the validity or performance of Delayed
Delivery Contracts.
You shall submit to the Operating Partnership, at least two business
days prior to the Closing Time, the names of any institutional investors with
which it is proposed that the Operating Partnership will enter into Delayed
Delivery Contracts and the number of Underwritten Securities to be purchased by
each of them, and the Operating Partnership will advise you, at least two
business days prior to the Closing Time, of the names of the institutions with
which the making of Delayed Delivery Contracts is approved by the Operating
Partnership and the number of Underwritten Securities to be covered by each such
Delayed Delivery Contract.
The principal amount of Underwritten Securities agreed to be purchased
by the several Underwriters pursuant to the applicable Terms Agreement shall be
reduced by the principal amount of Underwritten Securities covered by Delayed
Delivery Contracts, as to each Underwriter as set forth in a written notice
delivered by you to the Operating Partnership; provided, however, that the total
principal amount of Underwritten Securities to be purchased by all Underwriters
shall be the total principal amount of Underwritten Securities covered by the
applicable Terms Agreement, less the principal amount of Underwritten Securities
covered by Delayed Delivery Contracts.
Section 3. Covenants of the Operating Partnership. The Operating
Partnership covenants with you, and with each Underwriter participating in the
offering of Underwritten Securities, as follows:
(a) Immediately following the execution of the applicable Terms
Agreement, the Operating Partnership will prepare a Prospectus Supplement
setting forth the principal amount of Underwritten Securities covered thereby
and their terms not otherwise specified in the Prospectus pursuant to which the
Underwritten Securities are being issued, the names of the Underwriters
participating in the offering and the principal amount of Underwritten
Securities which each severally has agreed to purchase, the names of the
Underwriters acting as co-managers in connection with the offering, the price at
which the Underwritten Securities are to be purchased by the Underwriters from
the Operating Partnership, the initial public offering price, if any, the
selling concession and reallowance, if any, any delayed delivery arrangements,
and such other information as you and the Operating Partnership deem appropriate
in connection with the offering of the Underwritten Securities; and the
Operating Partnership will, by the close of business in New York on the business
day immediately succeeding the date of the applicable Terms Agreement, transmit
copies of the Prospectus Supplement to the Commission for filing pursuant to
Rule 424(b) of the 1933 Act Regulations and will furnish to the Underwriters
named therein as many copies of the Prospectus (including such Prospectus
Supplement) as you shall reasonably request. If the Operating Partnership elects
to rely on Rule 434 under the 1933 Act Regulations, the Operating Partnership
will prepare an abbreviated term sheet that complies with the requirements of
Rule 434 under the 1933 Act Regulations and will provide the Underwriters with
copies of the form of Rule 434 Prospectus, in such number as the Underwriters
may reasonably request, and file or transmit for filing with the Commission the
form of Prospectus
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complying with Rule 434(c)(2) of the 1933 Act Regulations in accordance with
Rule 424(b) of the 1933 Act Regulations by the close of business in New York on
the business day immediately succeeding the date of the applicable Terms
Agreement.
(b) The Operating Partnership will notify you immediately, and confirm
such notice in writing, of (i) the effectiveness of any amendment to the
Registration Statement, (ii) the transmittal to the Commission for filing of any
Prospectus Supplement or other supplement or amendment to the Prospectus or any
document to be filed pursuant to the 1934 Act, (iii) the receipt of any comments
from the Commission, (iv) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (v) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose. The Operating Partnership will make every
reasonable effort to prevent the issuance of any such stop order and, if any
stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(c) At any time when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities, the Operating Partnership will give you notice of its intention to
file or prepare any amendment to the Registration Statement or any amendment or
supplement to the Prospectus, whether pursuant to the 1933 Act, 1934 Act or
otherwise (including any revised Prospectus which the Operating Partnership
proposes for use by the Underwriters in connection with an offering of
Underwritten Securities which differs from the Prospectus on file at the
Commission at the time the Registration Statement first becomes effective,
whether or not such revised Prospectus is required to be filed pursuant to Rule
424(b) of the 1933 Act Regulations, or any abbreviated term sheet prepared in
reliance on Rule 434 of the 1933 Act Regulations), and will furnish you with
copies of any such amendment or supplement a reasonable amount of time prior to
such proposed filing or preparation, as the case may be, and will not file or
prepare any such amendment or supplement or other documents in a form to which
you or counsel for the Underwriters shall reasonably object.
(d) The Operating Partnership will deliver to each Underwriter as many
signed and conformed copies of the Registration Statement as originally filed
and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to be
incorporated by reference therein) as such Underwriter reasonably requests.
(e) The Operating Partnership will furnish to each Underwriter, from
time to time during the period when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities, such number of copies of the Prospectus (as amended or supplemented)
as such Underwriter may reasonably request for the purposes contemplated by the
1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations.
(f) If at any time when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities any event shall occur or condition exist as a result of which it is
necessary, in the reasonable opinion of counsel for the
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Underwriters or counsel for the Operating Partnership, to amend or supplement
the Prospectus in order that the Prospectus will not include an untrue statement
of a material fact or omit to state any material fact necessary in order to make
the statements therein not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser, or if it shall be necessary, in the
reasonable opinion of either such counsel, at any such time to amend or
supplement the Registration Statement or the Prospectus in order to comply with
the requirements of the 1933 Act or the 1933 Act Regulations, then the Operating
Partnership will promptly prepare and file with the Commission such amendment or
supplement, whether by filing documents pursuant to the 1933 Act, the 1934 Act
or otherwise, as may be necessary to correct such untrue statement or omission
or to make the Registration Statement and Prospectus comply with such
requirements, and the Operating Partnership will furnish to the Underwriters a
reasonable number of copies of such amendment or supplement.
(g) The Operating Partnership will endeavor, in cooperation with the
Underwriters, to qualify the Underwritten Securities, for offering and sale
under the applicable securities laws and real estate syndication laws of such
states and other jurisdictions of the United States as you may designate. In
each jurisdiction in which the Underwritten Securities have been so qualified,
the Operating Partnership will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification in
effect for so long as may be required for the distribution of the Underwritten
Securities; provided, however, that the Operating Partnership shall not be
obligated to (A) qualify as a foreign entity in any jurisdiction where it is not
so qualified, (B) file any general consent to service of process, or (C) take
any action that would subject it to income taxation in any such jurisdiction.
(h) With respect to each sale of Underwritten Securities, the Operating
Partnership will make generally available to its security holders as soon as
practicable, but not later than 90 days after the close of the period covered
thereby, an earnings statement (in form complying with the provisions of Rule
158 of the 1933 Act Regulations) covering a twelve month period beginning not
later than the first day of the Operating Partnership's fiscal quarter next
following the "effective date" (as defined in such Rule 158) of the Registration
Statement.
(i) The Operating Partnership, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act in connection with
sales of the Underwritten Securities, will file all documents required to be
filed with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act
within the time periods prescribed by the 1934 Act and the 1934 Act Regulations.
(j) Between the date of the applicable Terms Agreement and the
completion of distribution of the Underwritten Securities or such other date
specified in such Terms Agreement, the Operating Partnership will not, without
the prior written consent of Merrill Lynch, Pierce, Fenner & Smith Incorporated
("Merrill Lynch"), directly or indirectly, issue, sell, offer to sell, grant any
option for the sale of, or otherwise dispose of, the securities specified in the
Terms Agreement.
Section 4. Payment of Expenses. The Operating Partnership will pay all
expenses incident to the performance of its obligations under this Agreement or
the applicable Terms Agreement, including (i) the printing and filing of the
Registration Statement as originally filed
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and of each amendment thereto, (ii) the reproduction and filing of this
Agreement and the applicable Terms Agreement, (iii) the preparation, issuance
and delivery of the Underwritten Securities to the Underwriters, (iv) the fees
and disbursements of the Operating Partnership's counsel and accountants, (v)
the qualification of the Underwritten Securities, under securities laws and real
estate syndication laws in accordance with the provisions of Section 3(g),
including filing fees and the fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation of
any Blue Sky Survey, (vi) the reproduction and delivery to the Underwriters of
copies of any Blue Sky Survey, (vii) the printing and delivery to the
Underwriters of copies of the Registration Statement as originally filed and of
each amendment thereto, each preliminary prospectus and of the Prospectus and
any amendments or supplements thereto, (viii) any fees charged by nationally
recognized statistical rating organizations for the rating of the Securities,
(ix) the fees and expenses, if any, incurred with respect to the listing of the
Underwritten Securities on any national securities exchange, (x) the fees and
expenses, if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc. and (xi) any applicable fees and
expenses of the Trustee in connection with the Indenture and the Underwritten
Securities.
If the applicable Terms Agreement is terminated by you in accordance
with the provisions of Section 5, Section 9(b)(i) or 9(b)(ii), the Operating
Partnership shall reimburse the Underwriters named in such Terms Agreement for
all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
Section 5. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase Underwritten Securities pursuant to
the applicable Terms Agreement are subject to the accuracy of the
representations and warranties of the Operating Partnership herein contained, to
the accuracy of the statements of the Company's officers, and on behalf of the
Company in its capacity as indirect general partner of the Operating
Partnership, made in any certificate pursuant to the provisions hereof, to the
performance by the Operating Partnership of all of its covenants and other
obligations hereunder, and to the following further conditions:
(a) At Closing Time, (i) no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, (ii) at Closing
Time, the Underwritten Securities shall have the ratings accorded by any
"nationally recognized statistical rating organization," as defined by the
Commission for purposes of rule 436(g)(2) of the 1933 Act Regulations, if and as
specified in the applicable Terms Agreement, and the Operating Partnership shall
have delivered to Merrill Lynch a letter, dated as of such date, from each such
rating organization, or other evidence satisfactory to Merrill Lynch, confirming
that the Underwritten Securities have such ratings. Since the time of execution
of such Terms Agreement, there shall have not occurred a downgrading in the
rating assigned to the Underwritten Securities or any of the Operating
Partnership's other securities or any of the Company's securities by any such
rating organization, and no such rating organization shall have publicly
announced that it has under surveillance or review its rating of the
Underwritten Securities or any of the Operating Partnership's other securities
or any of the Company's securities, and (iii) there shall not have come to your
attention any facts that would reasonably cause you to believe that the
Prospectus, together with the applicable Prospectus Supplement, at the time it
was required to be delivered to purchasers of the Underwritten Securities,
included an untrue statement of a material fact or omitted to state a
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material fact necessary in order to make the statements therein, in light of
the circumstances existing at such time, not misleading.
(b) At Closing Time, you shall have received:
(1) The favorable opinion, dated as of Closing
Time, of Hogan & Hartson L.L.P., counsel for the Operating
Partnership, in form and substance satisfactory to counsel for
the Underwriters, to the effect that:
(i) Each of the Operating Partnership and
the Management Partnership was formed and is validly
existing as a partnership under the laws of the State of
Delaware as of the dates of the respective certificates
specified in such opinion. Each of the Operating
Partnership and the Management Partnership is in good
standing under the laws of the State of Delaware as of
the dates of the respective certificates specified in
such opinion. Based solely on certificates of public
officials, each of the Operating Partnership and the
Management Partnership is registered to do business in
Alabama, and the Operating Partnership is authorized to
transact business in the States of Florida, Georgia,
Mississippi, North Carolina, South Carolina, Tennessee
and Texas and the Commonwealth of Virginia as of the
dates of the respective certificates specified in such
opinion. The Management Partnership is authorized to
transact business in the States of Florida, Georgia,
Mississippi, North Carolina, South Carolina, Tennessee
and Texas and the Commonwealth of Virginia as of the
dates of the respective certificates specified in such
opinion.
(ii) CPHC was incorporated and is validly
existing and in good standing under the laws of the State
of Alabama. CPHC is authorized to transact business as a
foreign corporation in the States of Delaware, Florida,
Georgia, Mississippi, North Carolina, South Carolina,
Tennessee and Texas and the Commonwealth of Virginia as
of the dates of the respective certificates specified in
such opinion.
(iii) CPHC has full trust or corporate
power to own, lease or operate the Properties and to
conduct its business as described in the Prospectus. The
Management Partnership has the partnership power and
partnership authority under its partnership agreement and
the Delaware Revised Uniform Limited Partnership Act (the
"Delaware Act") to conduct its business as described in
the Prospectus. The Operating Partnership has the
partnership power and partnership authority under the
Agreement of Limited Partnership and the Delaware Act to
own, lease and operate the Properties and to conduct its
business as described in the Prospectus.
(iv) All of the issued shares of capital
stock of CPHC have been duly authorized and, assuming
receipt of consideration therefor as provided in the
applicable resolutions authorizing the issuance thereof
of
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the board of directors of each such subsidiary, are
validly issued, fully paid and non-assessable. All of the
outstanding partnership interests of the Operating
Partnership and the Management Partnership have been
authorized for issuance, are validly issued and, assuming
receipt of the consideration therefor as provided in the
respective partnership agreements and any resolutions
authorizing issuance thereof, are fully paid.
(v) Each of this Agreement and the
applicable Terms Agreement and the Delayed Delivery
Contracts, if any, has been duly authorized, executed and
delivered by the Operating Partnership.
(vi) The Underwritten Securities being
issued and sold pursuant to this Agreement and the
applicable Terms Agreement have been duly and validly
authorized by all necessary corporate action on the part
of the Operating Partnership; and such Underwritten
Securities, when issued and delivered by the Operating
Partnership pursuant to this Agreement and the Indenture
against payment of the consideration set forth in such
Terms Agreement or any Delayed Delivery Contract, will be
valid and legally binding obligations of the Operating
Partnership enforceable in accordance with their terms,
except as enforcement thereof may be limited by
bankruptcy, insolvency or other similar laws relating to
or affecting creditors' rights generally and by general
equity principles (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(vii) The Indenture has been duly
authorized, executed and delivered by the Operating
Partnership, and (assuming due authorization, execution
and delivery by the Trustee) constitutes a valid and
legally binding agreement of the Operating Partnership
enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy,
insolvency or other similar laws relating to or affecting
creditors' rights generally and by general equity
principles (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(viii) Except as set forth in the
Prospectus, to such counsel's knowledge, based on an
officer's certificate from the Company as indirect
general partner of the Operating Partnership, there are
no proceedings before or by any court, governmental
agency, or arbitrator pending or threatened against the
Operating Partnership or any of its Subsidiaries which,
if determined adversely to the Operating Partnership or
any of its Subsidiaries, would have a material adverse
effect on the financial condition, results of operations
or business of the Operating Partnership and its
Subsidiaries, considered as one enterprise.
(ix) The Registration Statement was
declared effective under the 1933 Act as of the date and
time specified in such opinion, the Indenture has been
qualified under the 1939 Act, the Prospectus was filed
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with the Commission pursuant to Rule 424 of the 1933 Act
Regulations on the date specified in such opinion, and, to
the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement
has been issued and no proceeding for that purpose is
pending or threatened by the Commission.
(x) The Registration Statement and the
Prospectus, excluding the documents incorporated by
reference therein, as of their respective effective
or issue dates (other than the financial statements and
supporting schedules included therein or omitted therefrom,
and other financial information and data included therein
or omitted therefrom, as to which such counsel need not
express an opinion) complied as to form in all material
respects with the requirements of the 1933 Act and the rules
and regulations thereunder.
(xi) The documents incorporated by
reference in the Prospectus (other than the financial
statements and supporting schedules and other financial
information and data included therein or omitted
therefrom, as to which such counsel need not express an
opinion), when they became effective or were filed with
the Commission, as the case may be, complied as to form
in all material respects with the requirements of the
1934 Act and the rules and regulations promulgated
thereunder.
(xii) The Underwritten Securities conform
in all material respects to the description thereof
contained in the Prospectus and the Prospectus Supplement.
(xiii) To such counsel's knowledge, there
are no contracts or other documents entered into
subsequent to July 30, 1997 which are required to be
described in the Prospectus or filed as exhibits to the
Registration Statement by the 1933 Act or by the 1933 Act
Regulations which have not been described or filed as
exhibits to the Registration Statement or incorporated
therein by reference as permitted by the 1933 Act
Regulations.
(xiv) The execution, delivery and
performance as of the date hereof by the Company and the
Operating Partnership of this Agreement and the Terms
Agreement and the consummation of the transactions
contemplated hereby and thereby, do not (i) result in a
breach of or a default under any of the agreements filed
as Exhibits 10.1, 10.2.1, 10.2.2, 10.2.3, 10.2.4, 10.2.5,
10.2.6, 10.2.7, 10.6, 10.13 and 10.17 to the Company's
Annual Report on Form 10-K for the year ended December
31, 1997, (ii) violate the provisions of the declaration
of trust, articles of incorporation, charter, partnership
agreement or by-laws of CPHC, the Operating Partnership
and the Management Partnership, or (iii) to such
counsel's knowledge, violate any order, statute, rule or
regulation of any federal or Delaware or Alabama court or
governmental agency or body
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having jurisdiction over the Company or any of
its subsidiaries or any of the Properties. Except for
the registration of the Underwritten Securities under
the 1933 Act and the qualification of the Indenture
under the 1939 Act and such filings, consents,
approvals, authorizations, registrations or
qualifications as have been made or obtained prior to
the date of such counsel's opinion, or may be
required under the 1934 Act, the Investment Company
Act of 1940, as amended ("the 1940 Act"), and
applicable state securities laws (as to which such
counsel need not express an opinion) in connection
with the purchase and distribution of the
Underwritten Securities, no consent, approval,
authorization or order of, or filing or registration
with, the Commission or any Delaware or Alabama court
or governmental agency or body is required to be
obtained or made by the Operating Partnership for the
execution, delivery and performance of this Agreement
and the applicable Terms Agreement by the Operating
Partnership, and the consummation of the transactions
contemplated hereby and thereby.
(xv) Neither the Operating Partnership nor
any of its Subsidiaries is an "investment company" as
such term is defined in the 1940 Act.
(2) The favorable opinion, dated as of Closing Time,
of Leitman, Siegal & Payne, P.C., special real estate counsel
to the Company and Operating Partnership and, in form and
substance satisfactory to counsel for the Underwriters, to the
effect that:
(i) The issuance and sale of the
Underwritten Securities being delivered on such
Closing Time by the Operating Partnership and the
compliance by the Operating Partnership with all the
provisions of this Agreement and the consummation of
the transactions contemplated hereby did not and will
not result in a breach or violation of any of the
terms of provisions of, or constitute a default
under, or result in the creation or imposition of any
lien, charge or encumbrance upon any of the
Properties or any other properties or assets of the
Operating Partnership or any of its Subsidiaries
pursuant to, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known
to such counsel to which the Operating Partnership or
any of its Subsidiaries is a party or by which the
Operating Partnership or any of its Subsidiaries is
bound or to which any of the Properties is subject.
(ii) The descriptions of or references to
any contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments
described or referred to in the Registration
Statement or the Prospectus or to be filed as
exhibits thereto other than those described or
referred to therein or filed as exhibits thereto, are
correct in all material respects, and, to the best of
their knowledge and information, no default exists in
the due performance or observance of any material
obligation, agreement,
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covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or
other instrument so described, referred to or filed
which would have a material adverse effect on the
condition, financial or otherwise, or the earnings,
business affairs or business prospects of the
Operating Partnership and its Subsidiaries considered
as one enterprise.
(3) The favorable opinion, dated as of Closing Time,
of Brown & Wood LLP, counsel for the Underwriters, with
respect to the matters set forth in (v) to (vii), inclusive,
(ix) and (x) of subsection (b)(1).
(4) In giving their opinions required by subsections
(b)(1), (b)(2) and (b)(3), respectively, of this Section,
Hogan & Hartson L.L.P., Leitman, Siegal & Payne, P.C. and
Brown & Wood LLP shall each additionally state that nothing
has come to their attention that causes them to believe that
the Registration Statement (except for financial statements
and schedules and other financial data, as to which counsel
need make no statement) at the time it became effective (or,
if an amendment to the Registration Statement or an Annual
Report on Form 10-K has been filed by the Operating
Partnership with the Commission subsequent to the
effectiveness of the Registration Statement, then at the time
such amendment becomes effective or at the time of the most
recent filing of such Annual Report, as the case may be) or at
the Representation Date, contained an untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary in order to make the statements
therein not misleading or that the Prospectus or any amendment
or supplement thereto (except for financial statements and
schedules and other financial data, as to which counsel need
make no statement), at the Representation Date or at Closing
Time, included or includes an untrue statement of a material
fact or omitted or omits 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
giving their opinions required by subsections (b)(1), (b)(2)
and (b)(3), respectively, of this Section, Hogan & Hartson
L.L.P., Leitman, Siegal & Payne, P.C. and Brown & Wood LLP may
rely, (1) as to all matters of fact, upon certificates and
written statements of officers and employees of and
accountants for the Operating Partnership, (2) with respect to
certain other matters, upon certificates of appropriate
government officials in such jurisdiction, and Hogan & Hartson
L.L.P. and Brown & Wood LLP may additionally rely, as to
matters involving the laws of the State of Alabama, upon the
opinion of Sirote & Permutt P.C. (or other counsel reasonably
satisfactory to counsel for the Underwriters) in form and
substance satisfactory to counsel for the Underwriters.
(5) The favorable opinion, dated as of Closing Time,
of Sirote & Permutt P.C. (or other counsel reasonably
satisfactory to counsel for the Underwriters), in form and
substance satisfactory to counsel for the Underwriters, with
respect to the matters set forth in (b)(1)(ii).
(c) At Closing Time, there shall not have been, since the date of the
applicable Terms Agreement or since the respective dates as of which information
is given in the Prospectus, any
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material adverse change in the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Operating Partnership
and its Subsidiaries considered as one enterprise, or any of the Properties,
whether or not arising in the ordinary course of business; no proceedings shall
be pending or, to the knowledge of the Operating Partnership, threatened against
the Operating Partnership, any of its Subsidiaries, or any of the Properties
before or by any Federal, state or other commission board or administrative
agency wherein an unfavorable decision, ruling or finding would materially and
adversely affect the business, property, financial condition or income of the
Operating Partnership and its Subsidiaries, considered as one enterprise or any
of the Properties; and you shall have received a certificate of the President
and Chief Executive Officer or a Vice President and the Assistant Secretary of
CPHC in its capacity as general partner of the Operating Partnership, dated as
of such Closing Time, to the effect that (i) there has been no such material
adverse change and (ii) the representations and warranties in Section 1 are true
and correct with the same force and effect as though such Closing Time were a
Representation Date. As used in this Section 5(c), the term "Prospectus" means
the Prospectus in the form first used to confirm sales of the Underwritten
Securities.
(d) At the time of the execution of the applicable Terms Agreement, you
shall have received a letter dated such date from PricewaterhouseCoopers LLP, in
form and substance reasonably satisfactory to you, to the effect that (i) they
are independent public accountants with respect to the Operating Partnership
within the meaning of the 1933 Act and the 1933 Act Regulations thereunder; (ii)
it is their opinion that the consolidated financial statements and financial
statement schedules of the Operating Partnership included or incorporated by
reference in the Registration Statement and the Prospectus and audited by them
and covered by their opinions therein comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations; (iii) they have performed limited procedures, not constituting an
audit, including a reading of the latest available unaudited interim
consolidated financial statements of the Operating Partnership, a reading of the
minute books of the Operating Partnership, inquiries of certain officials of the
Operating Partnership who have responsibility for financial and accounting
matters and such other inquiries and procedures as may be specified in such
letter, and on the basis of such limited review and procedures (which shall
include, without limitation, the procedures specified by the American Institute
of Certified Public Accountants for a review of interim financial information as
described in SAS No. 71, Interim Financial Information, with respect to the
unaudited condensed consolidated financial statement of the Operating
Partnership included or incorporated by reference in the Registration
Statement), nothing has come to their attention which causes them to believe (A)
that any material modifications should be made to the unaudited condensed
financial statements of the Operating Partnership included in the Registration
Statement for them to be in conformity with generally accepted accounting
principles or that such unaudited financial statements do not comply as to form
in all material respects with the applicable accounting requirements of the 1934
Act and the 1934 Act Regulations, or (B) at a specified date not more than three
days prior to the Representation Date, there has been any change in capital
stock, increase in long-term debt or decrease in consolidated partners' capital
of the Operating Partnership, as compared with the amounts shown in the most
recent consolidated balance sheet included or incorporated by reference in the
Registration Statement and the Prospectus or, during the period from the date of
the most recent consolidated statement of operations included or incorporated by
reference in the Registration Statement and the Prospectus to a specified date
not more than three days prior to the Representation Date, there were any
decreases, as compared with the corresponding period in
20
<PAGE>
the preceding year, in consolidated net revenues, or in the total or per unit
amounts of income before extraordinary items or of net income of the Operating
Partnership, except in all instances for changes, increases or decreases which
the Registration Statement and the Prospectus disclose have occurred or may
occur; (iv) they have compared the information in the Prospectus under selected
captions with the disclosure requirements of Regulation S-K and on the basis of
limited procedures specified in such letter nothing came to their attention as a
result of the foregoing procedures that caused them to believe that this
information does not conform in all material respects with the disclosure
requirements of Items 301 and 302, respectively, of Regulation S-K; and (v) in
addition to the examination referred to in their opinion and the limited
procedures referred to in clause (iii) above, they have carried out certain
specified procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information which are included or
incorporated by reference in the Registration Statement and Prospectus and which
are specified by you, and have found such amounts, percentages and financial
information to be in agreement with the relevant accounting, financial and other
records of the Operating Partnership identified in such letter.
(e) At Closing Time, you shall have received a letter, dated as of
Closing Time, from PricewaterhouseCoopers LLP, to the effect that they reaffirm
the statements made in the letter furnished pursuant to subsection (d) of this
Section, except that the "specified date" referred to shall be a date not more
than three days prior to such Closing Time.
(f) At Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require for
the purpose of enabling them to pass upon the issuance and sale of the
Underwritten Securities as herein contemplated and related proceedings, or in
order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Operating Partnership in connection with the issuance and sale of
the Underwritten Securities, as herein contemplated shall be reasonably
satisfactory in form and substance to you and counsel for the Underwriters.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, the applicable Terms Agreement
may be terminated by you by notice to the Operating Partnership at any time at
or prior to the Closing Time, as the case may be, and such termination shall be
without liability of any party to any other party except as provided in Section
4 hereof.
Section 6. Indemnification. The Operating Partnership hereby agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act as
follows:
(1) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any
untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any amendment
thereto), including the information deemed to be part of the
Registration Statement pursuant to Rule 430A(b) or Rule 434 of
the 1933 Act Regulations, if applicable, or the omission or
alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements
21
<PAGE>
therein not misleading or arising out of any untrue statement
or alleged untrue statement of a material fact contained in
the Prospectus (or any amendment or supplement thereto) or the
omission, or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
(2) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation, or
any investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is
effected with the written consent of the indemnifying party;
and
(3) against any and all expense whatsoever
(including, the fees and disbursements of counsel chosen by
you) reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or
proceedings by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid
under (1) or (2) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Operating
Partnership by any Underwriter through you expressly for use in the Registration
Statement (or any amendment thereto) and the Prospectus (or any amendment or
supplement thereto) or to that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification under the 1939 Act
(Form T-1) of the trustee under the Indenture.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Operating Partnership, each person who signed the Registration Statement and
each person, if any, who controls the Operating Partnership within the meaning
of Section 15 of the 1933 Act (including the directors and officers of CPHC),
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions, made
in the Registration Statement (or any amendment thereto) or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Operating Partnership by such Underwriter
through you expressly for use in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this
22
<PAGE>
indemnity agreement. An indemnifying party may participate at its own expense in
the defense of such action. If it so elects within a reasonable time after
receipt of such notice, an indemnifying party, jointly with any other
indemnifying parties receiving such notice, may assume the defense of such
action with counsel chosen by it and approved by the indemnified parties
defendant in such action, unless such indemnified parties reasonably object to
such assumption on the ground that there may be legal defenses available to them
which are different from or in addition to those available to such indemnifying
party. In case of such reasonable objection, an indemnified party may select its
own counsel and local counsel, whose fees shall be paid by the indemnifying
party. If an indemnifying party assumes the defense of such action, the
indemnifying parties shall not be liable for any fees and expenses of counsel
for the indemnified parties incurred thereafter in connection with such action.
In no event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances.
(d) For purposes of this Section 6, all references to the Registration
Statement, any preliminary prospectus or the Prospectus, or any amendment or
supplement to any of the foregoing, shall be deemed to include, without
limitation, any electronically transmitted copies thereof, including, without
limitation, any copies filed with the Commission pursuant to EDGAR.
Section 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Operating Partnership and
the Underwriters with respect to the offering of the Underwritten Securities
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by the
Operating Partnership and one or more of the Underwriters in respect of such
offering, as incurred, in such proportions that the Underwriters are responsible
for that portion represented by the percentage that the underwriting discount
appearing on the cover page of the Prospectus in respect of such offering bears
to the initial public offering price appearing thereon and the Operating
Partnership is responsible for the balance; provided, however, that no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 1933 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. Notwithstanding the provisions of
this Section 7, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Underwritten
Securities purchased by it pursuant to the applicable Terms Agreement and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay in respect of
such losses, liabilities, claims, damages and expenses. For purposes of this
Section, each person, if any, who controls an Underwriter within the meaning of
Section 15 of the 1933 Act shall have the same rights to contribution as such
Underwriter, and each trustee of the Company in its capacity as general partner
of the Operating Partnership, each person who signed the Registration Statement,
and each person, if any, who controls the Operating Partnership within the
meaning of Section 15 of the 1933 Act shall have the same rights to contribution
as the Operating Partnership. The Underwriter's obligations to contribute
23
<PAGE>
pursuant to this Section 7 are several in proportion to their respective
underwriting commitments and not joint.
Section 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or the applicable Terms Agreement, or contained in certificates of
officers of the Operating Partnership submitted pursuant hereto, shall remain
operative and in full force and effect, regardless of any termination of this
Agreement or the applicable Terms Agreement, or investigation made by or on
behalf of any Underwriter or any controlling person, or by or on behalf of the
Operating Partnership, and shall survive delivery of and payment for the
Underwritten Securities.
Section 9. Termination of Agreement. This Agreement (excluding the
applicable Terms Agreement) may be terminated for any reason at any time by the
Operating Partnership or by you upon the giving of 30 days' written notice of
such termination to the other parties hereto.
(b) You may also terminate the applicable Terms Agreement, by notice to
the Operating Partnership, at any time at or prior to the Closing Time (i) if
there has been, since the date of such Terms Agreement or since the respective
dates as of which information is given in the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Operating Partnership or any of its
Subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if the rating assigned by any nationally
recognized statistical rating organization to any security of the Company or the
Operating Partnership as of the date of the applicable Terms Agreement shall
have been lowered since such date or if any such rating organization shall have
publicly announced that it has placed any security of the Company or the
Operating Partnership on what is commonly termed a "watch list" for possible
downgrading; (iii) if there has occurred any material adverse change in the
financial markets in the United States or elsewhere or any outbreak of
hostilities or escalation thereof or other calamity or crisis the effect of
which is such as to make it, in your judgment, impracticable to market the
Underwritten Securities or enforce contracts for the sale of the Underwritten
Securities, or (iv) if trading in any of the securities of the Company or the
Operating Partnership has been suspended or limited, or if trading generally on
either the New York Stock Exchange or the American Stock Exchange has been
suspended or limited, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices for securities have been required, by either of
said Exchanges or by order of the Commission or any other governmental
authority, or if a banking moratorium has been declared by either Federal, New
York or Alabama authorities. As used in this Section 9(b), the term "Prospectus"
means the Prospectus in the form first used to confirm sales of the Underwritten
Securities.
(c) In the event of any such termination, (x) the covenants set forth
in Section 3 with respect to any offering of Underwritten Securities shall
remain in effect so long as any Underwriter owns any such Underwritten
Securities purchased from the Operating Partnership pursuant to the applicable
Terms Agreement and (y) the covenant set forth in Section 3(h) hereof, the
provisions of Section 4 hereof, the indemnity and contribution agreements set
forth in Sections 6 and 7 hereof, and the provisions of Sections 8 and 13 hereof
shall remain in effect.
24
<PAGE>
Section 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at the Closing Time to purchase the Underwritten
Securities which it or they are obligated to purchase under the applicable Terms
Agreement (the "Defaulted Securities"), then you shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, you shall not have completed such
arrangements within such 24-hour period, then:
(a) if the total principal amount of Defaulted Securities does not
exceed 10% of the total principal amount of Underwritten Securities to be
purchased pursuant to such Terms Agreement, the non-defaulting Underwriters
named in such Terms Agreement shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the total principal amount of Defaulted Securities exceeds 10%
of the total principal amount of Underwritten Securities to be purchased
pursuant to such Terms Agreement, the applicable Terms Agreement shall terminate
without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default under this Agreement and
the applicable Terms Agreement.
In the event of any such default which does not result in a termination
of the applicable Terms Agreement, either you or the Operating Partnership shall
have the right to postpone the Closing Time for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
the Prospectus or in any other documents or arrangements.
Section 11. Notices. 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 directed c/o Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, World Financial Center, North Tower, 250 Vesey
Street, New York, New York 10281-1326, attention of John P. Case, Vice
President; and notices to the Operating Partnership shall be directed to it at
2101 6th Avenue North, Suite 750, Birmingham, Alabama, attention: Chief
Financial Officer.
Section 12. Parties. This Agreement and the applicable Terms Agreement
shall each inure to the benefit of and be binding upon you, the Operating
Partnership and any Underwriter who becomes a party to such Terms Agreement, and
their respective successors. Nothing expressed or mentioned in this Agreement or
the applicable Terms Agreement is intended or shall be construed to give any
person, firm or corporation, other than those referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or such Terms Agreement or any
provision herein or therein contained. This Agreement and the applicable Terms
Agreement and all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the parties hereto and thereto and
their respective successors and said controlling persons and officers and
25
<PAGE>
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Underwritten Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
Section 13. Governing Law and Time. This Agreement and the applicable
Terms Agreement shall be governed by and construed in accordance with the laws
of the State of New York applicable to agreements made and to be performed in
said State. Specified times of day refer to New York City time.
Section 14. Counterparts. This Agreement and the applicable Terms
Agreement may be executed in one or more counterparts, and if executed in more
than one counterpart the executed counterparts shall constitute a single
instrument.
26
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Operating Partnership a counterpart
hereof, whereupon this instrument, along with all counterparts will become a
binding agreement between you and the Operating Partnership in accordance with
its terms.
Very truly yours,
COLONIAL REALTY LIMITED PARTNERSHIP,
the Operating Partnership
By: Colonial Properties Holding
Company, Inc.
(its general partner)
By: /s/ Thomas H. Lowder
------------------------------
Name: Thomas H. Lowder
Title: President and Chief
Executive Officer
CONFIRMED AND ACCEPTED,
as of the date first
above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
LEHMAN BROTHERS INC.
MORGAN STANLEY & CO. INCORPORATED
By: Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By: /s/ John P. Case III
---------------------------------
Name:
Title:
27
<PAGE>
Exhibit A
COLONIAL REALTY LIMITED PARTNERSHIP
(a Delaware Limited Partnership)
Debt Securities
TERMS AGREEMENT
---------------
Dated: July 9, 1998
To: COLONIAL REALTY LIMITED PARTNERSHIP
2101 6th Avenue North
Suite 750
Birmingham, Alabama
Attention:
Dear Sirs:
We (the "Representative") understand that Colonial Realty Limited
Partnership, a Delaware limited partnership (the "Operating Partnership"),
proposes to issue and sell $_________ aggregate principal amount of its senior
debt securities (such debt securities being hereinafter referred to as the
"Underwritten Securities"). Subject to the terms and conditions set forth or
incorporated by reference herein, the underwriters named below (the
"Underwriters") offer to purchase, severally and not jointly, the respective
principal amounts of Underwritten Securities (as defined in the Underwriting
Agreement referenced below) set forth below opposite their respective names at
the purchase price set forth below.
28
<PAGE>
<TABLE>
<CAPTION>
Principal Amount of
Underwriter Underwritten Securities
<S> <C>
........................................................................
------
Total...................................................................
------
------
</TABLE>
The Underwritten Securities shall have the following terms:
Title:
Rank:
Ratings:
Aggregate principal amount:
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Fixed or Variable Price Offering: [Fixed] [Variable] Price Offering
If Fixed Price Offering, initial public offering price Underwritten
Security: % of the principal amount, plus accrued interest
[amortized original issue discount], if any, from ------------------.
Purchase price Underwritten Security: % of principal amount, plus accrued
interest [amortized original issue discount], if any, from -------------------.
Form:
Other terms and conditions:
Closing date and location:
All the provisions contained in the document attached as Annex A
hereto entitled "Colonial Realty Limited Partnership - Debt Securities -
Underwriting Agreement" are hereby incorporated by reference in their entirety
herein and shall be deemed to be a part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein. Terms defined
in such document are used herein as therein defined.
29
<PAGE>
Please accept this offer no later than nine o'clock P.M. (New York City
time) on July 9, 1998 by signing a copy of this Terms Agreement in the space set
forth below and returning the signed copy to us.
Very truly yours,
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
LEHMAN BROTHERS INC.
MORGAN STANLEY & CO. INCORPORATED
By Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By
----------------------------------------
Acting on behalf of themselves and
the other named Underwriters.
Accepted:
COLONIAL REALTY LIMITED PARTNERSHIP,
the Operating Partnership
By: Colonial Properties Holding
Company, Inc.
(its general partner)
By:
---------------------------------------
Name:
Title:
30
<PAGE>
Exhibit B
COLONIAL REALTY LIMITED PARTNERSHIP
(a Delaware Limited Partnership)
[Title of Securities]
DELAYED DELIVERY CONTRACT
-------------------------
, 199
-
COLONIAL REALTY LIMITED PARTNERHSIP
2101 6th Avenue North
Suite 750
Birmingham, Alabama
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from Colonial Realty Limited
Partnership (the "Company"), and the Company agrees to sell to the undersigned
on __________, 19__ (the "Delivery Date"), of the Company's [insert title of
security] (the "Securities"), offered by the Company's Prospectus dated
__________, 19__, as supplemented by its Prospectus Supplement dated
___________, 19__, receipt of which is hereby acknowledged at a purchase price
of [$__________] [and, $__________ per Warrant, respectively] to the Delivery
Date, and on the further terms and conditions set forth in this contract.
Payment for the Securities which the undersigned has agreed to purchase
on the Delivery Date shall be made to the Company or its order by certified or
official bank check in Federal or other same day funds at the office of
, on the Delivery Date, upon delivery to the undersigned of
the Securities to be purchased by the undersigned in definitive form and in
such denominations and registered in such names as the undersigned may
designate by written or telegraphic communication addressed to the Company not
less than five full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date shall be subject only to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company, on or before __________, 19__, shall
have sold to the Underwriters of the Securities (the "Underwriters") such
principal amount of the Securities as is to be sold to them pursuant to the
Terms Agreement dated __________, 19__ between the Company and the Underwriters.
The obligation of the undersigned to take delivery of and make payment for
Securities shall not be affected by the failure of any purchaser to take
delivery of and make payments for Securities pursuant to other contracts similar
to this contract. The undersigned represents and warrants to you that its
investment in the Securities is not, as of the date hereof, prohibited under the
laws of any jurisdiction to which the undersigned is subject and which govern
such investment.
31
<PAGE>
Promptly after completion of the sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to the
Company that all necessary corporate action for the due execution and delivery
of this contract and the payment for and purchase of the Securities has been
taken by it and no further authorization or approval of any governmental or
other regulatory authority is required for such execution, delivery, payment or
purchase, and that, upon acceptance hereof by the Company and mailing or
delivery of a copy as provided below, this contract will constitute a valid and
binding agreement of the undersigned in accordance with its terms.
This contract will inure to the benefit of and binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed Delivery
Contracts for a number of Securities in excess of ________ and that the
acceptance of any Delayed Delivery Contract is in the Company's sole discretion
and, without limiting the foregoing, need not be on a first-come, first-served
basis. If this contract is acceptable to the Company, it is requested that the
Company sign the form of acceptance on a copy hereof and mail or deliver a
signed copy hereof to the undersigned at its address set forth below. This will
become a binding contract between the Company and the undersigned when such copy
is so mailed or delivered.
This Agreement shall be governed by the laws of the State of New York.
Yours very truly,
-----------------------------------------------------
(Name of Purchaser)
By
--------------------------------------------------
(Title)
-----------------------------------------------------
-----------------------------------------------------
(Address)
Accepted as of the date first above written.
COLONIAL REALTY LIMITED PARTNERSHIP,
the Operating Partnership
By: Colonial Properties Holding
Company, Inc.
(its general partner)
By:
------------------------------------
Name:
Title:
32
<PAGE>
PURCHASER-PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser
with whom details of delivery on the Delivery Date may be discussed are as
follows: (Please print.)
Telephone No.
(including
Name Area Code)
<PAGE>
Exhibit 1.2
COLONIAL REALTY LIMITED PARTNERSHIP
(a Delaware Limited Partnership)
Debt Securities
TERMS AGREEMENT
---------------
Dated: July 9, 1998
To: COLONIAL REALTY LIMITED PARTNERSHIP
2101 6th Avenue North
Suite 750
Birmingham, Alabama
Dear Sirs:
We (the "Representative") understand that Colonial Realty Limited
Partnership, a Delaware limited partnership (the "Operating Partnership"),
proposes to issue and sell $175,000,000 aggregate principal amount of its
senior debt securities (such debt securities being hereinafter referred to as
the "Underwritten Securities"). Subject to the terms and conditions set forth
or incorporated by reference herein, the underwriters named below (the
"Underwriters") offer to purchase, severally and not jointly, the respective
principal amounts of Underwritten Securities (as defined in the Underwriting
Agreement referenced below) set forth below opposite their respective names
at the purchase price set forth below.
<PAGE>
<TABLE>
<CAPTION>
Principal Amount of
Underwriter Underwritten Securities
----------- -----------------------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated......................... $122,500,000
Lehman Brothers Inc. .......................................... 26,250,000
Morgan Stanley & Co. Incorporated.............................. 26,250,000
------------
Total..................................... $175,000,000
------------
------------
</TABLE>
The Underwritten Securities shall have the following terms:
<TABLE>
<CAPTION>
<S> <C>
Title: 7% Senior Notes due July 14, 2007
Rank: Pari passu with all other unsecured and
unsubordinated indebtedness of the
Operating Partnership
Ratings: Baa3/BBB-
Aggregate principal amount: $175,000,000
Denominations: $1,000 and integral multiples
Currency of payment: U.S. dollars
Interest rate or formula: 7% per annum
Interest payment dates: Payable semi-annually in arrears
on each January 14 and July 14,
commencing January 14, 1999
Regular record dates: 15 calendar days prior to each payment date
Stated maturity date: July 14, 2007
Redemption provisions: Redeemable at any time at the option of the
Operating Partnership, in whole or in part, at a
redemption price equal to the sum of : (i) the
principal amount of the Notes being redeemed plus
accrued interest to the redemption date; and (ii)
the Make-Whole Amount, if any
Sinking fund requirements: N/A
Conversion provisions: N/A
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
Listing requirements: N/A
Black-out provisions: Between July 9, 1998 and the completion of
distribution of the Underwritten Securities, the
Operating Partnership will not, without the prior
written consent of Merrill Lynch, Pierce, Fenner &
Smith Incorporated, directly or indirectly, issue,
sell, offer to sell, grant any option for the sale
of, or otherwise dispose of, the Underwritten
Securities
Fixed or Variable Price
Offering: Fixed Price Offering
Initial public offering
price per Underwritten
Security: 99.415% of the principal amount, plus accrued
interest, if any, from July 14, 1998
Purchase price per
Underwritten Security: 98.765% of the principal amount
Other terms and conditions: N/A
Closing date and location: July 14, 1997 at Brown & Wood LLP at 9:00 A.M.
</TABLE>
All the provisions contained in the document attached as Annex A hereto
entitled "Colonial Realty Limited Partnership - Debt Securities - Underwriting
Agreement" are hereby incorporated by reference in their entirety herein and
shall be deemed to be a part of this Terms Agreement to the same extent as if
such provisions had been set forth in full herein. Terms defined in such
document are used herein as therein defined.
<PAGE>
Please accept this offer no later than nine o'clock P.M. (New York City
time) on July 9, 1998 by signing a copy of this Terms Agreement in the space set
forth below and returning the signed copy to us.
Very truly yours,
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
LEHMAN BROTHERS INC.
MORGAN STANLEY & CO. INCORPORATED
By Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By /s/ John P. Case III
-----------------------------------------
Acting on behalf of themselves and
the other named Underwriters.
Accepted:
COLONIAL REALTY LIMITED PARTNERSHIP,
the Operating Partnership
By: Colonial Properties Holding
Company, Inc.
(its general partner)
By: /s/ Thomas H. Lowder
--------------------------------------------
Name: Thomas H. Lowder
Title: President and Chief Executive Officer
<PAGE>
Exhibit 5.1
[LETTERHEAD OF HOGAN & HARTSON L.L.P.]
July 17, 1998
Board of Directors
Colonial Properties Holding Company, Inc.,
as General Partner of Colonial Realty
Limited Partnership
2101 Sixth Avenue North
Suite 750
Birmingham, Alabama 35202
Ladies and Gentlemen:
We are acting as counsel to Colonial Realty Limited
Partnership, a Delaware limited partnership (the "Company"), in connection with
its registration statements on Form S-3 (SEC File Nos. 333-14401 and 333-42049)
(the "Registration Statements"), previously declared effective by the Securities
and Exchange Commission, relating to the proposed public offering of the
Company's unsecured debt securities that may be offered and sold by the Company
from time to time as set forth in a prospectus and one or more supplements
thereto, all of which form a part of the Registration Statements. This opinion
letter is rendered in connection with the proposed offering of $175,000,000 in
aggregate principal amount of the Company's 7% Senior Notes due July 14, 2007
(the "Notes") as described in a Prospectus dated January 8, 1998 (the
"Prospectus"), and a Prospectus Supplement dated July 9, 1998 (the "Prospectus
Supplement"). This opinion letter is furnished to you at your request to enable
you to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R.
ss. 229.601(b)(5), in connection with the Registration Statements.
For purposes of this opinion letter, we have examined copies
of the following documents:
1. Executed copies of the Registration Statements.
2. The Prospectus and the Prospectus Supplement.
<PAGE>
Board of Directors
Colonial Properties Holding
Company, Inc.
July 17, 1998
Page 2
3. The Certificate of Limited Partnership of the Company,
as certified by the Secretary of State of the State of
Delaware on July 7, 1998 and as certified by an
Assistant Secretary of Colonial Properties Holding
Company, Inc., an Alabama corporation and general
partner of the Company ("CPHC"), on the date hereof as
being complete, accurate and in effect.
4. The Second Amended and Restated Agreement of Limited
Partnership of the Company, dated as of October 27,
1994, with amendments thereto, as certified by an
Assistant Secretary of CPHC, as general partner of the
Company, on the date hereof as being complete, accurate
and in effect.
5. The Articles of Incorporation of CPHC, with amendments
thereto, as certified by the Secretary of State of the
State of Alabama on July 7, 1998 and as certified by an
Assistant Secretary of CPHC on the date hereof as being
complete, accurate and in effect.
6. The by-laws of CPHC, as certified by an Assistant
Secretary of CPHC on the date hereof as being complete,
accurate and in effect.
7. Certain resolutions of the Board of Directors of CPHC
(the "Board"), adopted at meetings held on October 24,
1996 and October 23, 1997, authorizing the preparation,
execution and filing of the Registration Statements, as
certified by an Assistant Secretary of CPHC on the date
hereof as being complete, accurate and in effect.
8. Certain resolutions of the Pricing Committee of the
Board adopted by written consent of the sole member on
July 9, 1998, as certified by an Assistant Secretary of
CPHC on the date hereof as being complete, accurate and
in effect, relating to, among other things,
establishment of the Notes as a new series of the
Company's unsecured debt securities under the Indenture
dated as of July 22, 1996 between the Company and
Bankers Trust Company, as Trustee (the "Indenture"),
authorization of the Agreements (as
<PAGE>
Board of Directors
Colonial Properties Holding
Company, Inc.
July 17, 1998
Page 3
defined below), and arrangements in connection
therewith, and the issuance of the Notes on the terms
set forth therein and in accordance with the terms of
the Indenture.
9. Executed copies of the Underwriting Agreement dated
July 9, 1998, by and among the Company and Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Lehman Brothers Inc. and Morgan Stanley &
Co. Incorporated (the "Underwriting Agreement"), and
the related Terms Agreement dated July 9, 1998, by and
among the Company and Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated, Lehman
Brothers Inc. and Morgan Stanley & Co. Incorporated
(the "Terms Agreement," and, collectively with the
Underwriting Agreement, the "Agreements").
10. Executed copy of the Indenture.
11. Opinion letter, of even date herewith, of Sirote &
Permutt, P.C., special counsel to the Company in the
State of Alabama.
In our examination of the aforesaid documents, we have assumed
the genuineness of all signatures, the legal capacity of natural persons, the
accuracy and completeness of all documents submitted to us, the authenticity of
all original documents and the conformity to authentic original documents of all
documents submitted to us as copies (including telecopies). This opinion letter
is given, and all statements herein are made, in the context of the foregoing.
This opinion letter is based as to matters of law solely on
applicable provisions of (i) the General Corporation Law of the State of
Alabama, (ii) the Delaware Revised Uniform Limited Partnership Act, as amended,
and (iii) the laws of the State of New York relating to the creation and
enforceability of contracts, but not including any laws, statutes, ordinances,
administrative decisions, rules, or regulations of any political subdivision of
the State of New York, and we express no opinion as to any other laws, statutes,
ordinances, rules or regulations (such as federal or state securities or "blue
sky" laws). In rendering this opinion letter, we are relying, to the extent that
the laws of Alabama are relevant (without any independent verification or
investigation), upon the opinion letter of Sirote & Permutt, P.C., special
counsel to the Company in the State of Alabama, described in paragraph 11 above,
with respect to the matters addressed therein.
<PAGE>
Board of Directors
Colonial Properties Holding
Company, Inc.
July 17, 1998
Page 4
Based upon, subject to and limited by the foregoing, we are of
the opinion that, assuming receipt by the Company of the consideration for the
Notes specified in the Agreements, the Notes constitute valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
(including, without limitation, the effect of statutory and other law regarding
fraudulent conveyances, fraudulent transfers and preferential transfers) and as
may be limited by the exercise of judicial discretion and the application of
principles of equity, including, without limitation, requirements of good faith,
fair dealing, conscionability and materiality (regardless of whether the Notes
are considered in a proceeding at law or in equity).
The opinion as to enforceability expressed above shall be
understood to mean only that if there is a default in performance of an
obligation, (i) if a failure to pay or other damage can be shown and (ii) if the
defaulting party can be brought into a court which will hear the case and apply
the governing law, then, subject to the availability of defenses, and to the
exceptions set forth above, the court will provide a money damage (or perhaps
injunctive or specific performance) remedy.
We assume no obligation to advise you of any changes in the
foregoing subsequent to the delivery of this opinion letter. This opinion letter
has been prepared solely in connection with the filing by the Company of a
Current Report on Form 8-K on the date hereof, which Form 8-K will be
incorporated by reference into the Registration Statement. This opinion letter
should not be quoted in whole or in part or otherwise be referred to, nor filed
with or furnished to any governmental agency or other person or entity, without
the prior written consent of this firm.
<PAGE>
Board of Directors
Colonial Properties Holding
Company, Inc.
July 17, 1998
Page 5
We hereby consent to the filing of this opinion letter as
Exhibit 5.1 to the above-described Form 8-K and to the reference to this firm
under the caption "Legal Matters" in the Prospectus and the Prospectus
Supplement. In giving this consent, we do not thereby admit that we are an
"expert" within the meaning of the Securities Act of 1933, as amended.
Very truly yours,
/s/ Hogan & Hartson L.L.P.
--------------------------------------
HOGAN & HARTSON L.L.P.
<PAGE>
EXHIBIT 5.2
[LETTERHEAD OF SIROTE & PERMUTT, P.C.]
July 14, 1998
Board of Directors
Colonial Properties Holding Company, Inc.,
as general partner of Colonial Realty
Limited Partnership
2101 Sixth Avenue North
Suite 750
Birmingham, Alabama 35202
RE: Colonial Realty Limited Partnership
Ladies and Gentlemen:
We have acted as special Alabama counsel to Colonial Realty Limited
Partnership, a Delaware limited partnership (the "Company"), in connection with
its registration statements on Form S-3 (Registration Nos. 333-14401 and
333-42049) (collectively, as amended, the "Registration Statements") previously
declared effective by the Securities and Exchange Commission relating to the
proposed public offering of the Company's unsecured debt securities that may be
offered and sold by the Company from time to time as set forth in a prospectus
and one or more supplements thereto, all of which form a part of the
Registration Statements. This opinion letter is rendered in connection with the
proposed offering of $175,000,000 in aggregate principal amount of the Company's
7% Senior Notes due July 14, 2007 (the "Notes") as described in a Prospectus
dated January 8, 1998 (the "Prospectus"), and a Prospectus Supplement dated July
9, 1998 (the "Prospectus Supplement"). This opinion letter is furnished to you
at your request to enable you to fulfill the requirements of Item 601(b)(5) of
Regulation S-K, 17 C.F.R. (S) 229.601(b)(5), in connection with the Registration
Statements.
For purposes of this opinion letter, we have examined copies of the
following documents:
1. Executed copies of the Registration Statements.
2. The Prospectus and the Prospectus Supplement.
3. Executed copies of the Underwriting Agreement dated July 9, 1998
1
<PAGE>
among the Company (by Colonial Properties Holding Company, Inc., an Alabama
corporation and general partner of the Company ("CPHC")), Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Lehman Brothers, Inc. and
Morgan Stanley & Co. Incorporated (collectively, the "Underwriters") (the
"Underwriting Agreement") and the related Terms Agreement dated July 9, 1998
between the Company and the Underwriters (the "Terms Agreement" and, together
with the Underwriting Agreement, the "Agreements").
4. The Certificate of Limited Partnership of the Company, as
certified by the Secretary of State of the State of Delaware on July 7, 1998 and
as certified by an Assistant Secretary of CPHC, on the date hereof, as being
complete, accurate and in effect.
5. The Second Amended and Restated Agreement of Limited Partnership
of the Company, dated as of October 24, 1994, with amendments thereto, as
certified by an Assistant Secretary of CPHC on the date hereof as being
complete, accurate and in effect.
6. The Articles of Incorporation of CPHC, with amendments thereto,
as certified by the Secretary of State of the State of Alabama on July 7, 1998
and as certified by an Assistant Secretary of CPHC on the date hereof as being
complete, accurate and in effect.
7. The by-laws of CPHC, as certified by an Assistant Secretary of
CPHC on the date hereof as being complete, accurate and in effect.
8. Certain resolutions of the Board of Directors of CPHC adopted at
meetings held on October 24, 1996 and October 23, 1997, relating to, among other
things, the authorization for issuance of the debt securities of the Company,
the approval and ratification of the preparation, execution and filing of the
Registration Statements and related matters, as certified by an Assistant
Secretary of CPHC on the date hereof as being complete, accurate and in effect.
9. Certain resolutions of the Pricing Committee of the Board of
Directors of CPHC adopted on July 9, 1998, relating to, among other things, the
authorization of the Agreements and arrangements in connection therewith, the
establishment of the final terms of the Notes, and the issuance of the Notes on
the terms set forth in the Term Agreement, as certified by an Assistant
Secretary of CPHC on the date hereof as being complete, accurate and in effect.
10. The Indenture, dated as of July 22, 1996, between the Company and
Bankers Trust Company, as Trustee (the "Indenture").
11. A copy of the Global Note as executed by the Company to be issued
pursuant to the Indenture.
12. A copy of an Officers' Certificate executed by certain officers
of CPHC, as general partner of the Company, and provided to the Trustee pursuant
to Section 301 of the
2
<PAGE>
Indenture.
13. Opinion Letter, of even date herewith, of Hogan & Hartson
L.L.P., counsel to the Company.
We have not, except as specifically identified above, made any
independent review or investigation of factual or other matters, including the
organization, existence, good standing, assets, business or affairs of the
Company. In our examination of the aforesaid documents, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity, accuracy and completeness of all documents submitted to us as
originals, the conformity to the original documents of all documents submitted
to us as certified, telecopied, photostatic, or reproduced copies, and the
authenticity, accuracy and completeness of the originals of such latter
documents. This opinion letter is given, and all statements herein are made, in
the context of the foregoing.
This opinion letter is based as to matters of law solely on the laws
of the State of Alabama, and we express no opinion herein as to any other laws,
statutes, regulations, or ordinances.
In accordance with the general policies of this law firm in rendering
legal opinions, we have assumed for the purposes of the opinions expressed
herein that no fraud exists with respect to any of the matters relevant to the
opinions expressed herein, although we have no reason to believe that there
exists any fraud which would render invalid the opinions expressed below.
Based upon, subject to, and limited by the foregoing, we are of the
opinion that, as of the date of this letter, assuming receipt by the Company
of the consideration for the Notes specified in the Agreements, the Notes
constitute valid and binding obligations of the Company under the laws of the
State of Alabama, enforceable against the Company in accordance with their
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors'
rights (including, without limitation, the effect of statutory and other law
regarding fraudulent conveyances, fraudulent transfers and preferential
transfers) and as may be limited by the exercise of judicial discretion and
the application of principles of equity, including, without limitation,
requirements of good faith, fair dealing, conscionability and materiality
(regardless of whether the Notes are considered in a proceeding at law or in
equity).
3
<PAGE>
The opinion as to enforceability expressed above shall be
understood to mean only that if there is a default in performance of an
obligation, (i) if a failure to pay or other damage can be shown and (ii) if
the defaulting party can be brought into a court which will hear the case and
apply the governing law, then, subject to the availability of defenses, and
to the exceptions set forth above, the court will provide money damages (or
perhaps injunctive or specific performance) remedy.
We are members of the Bar of the State of Alabama, and we do not
express any opinion concerning any law other than the law of the State of
Alabama. We assume no obligation to advise you of any changes in the
foregoing subsequent to delivery of this opinion letter. This opinion letter
has been prepared solely in connection with the filing by the Company of a
Current Report on Form 8-K on the date hereof, which Form 8-K will be
incorporated by reference into the Registration Statements. This opinion
letter should not be quoted in whole or in part or otherwise be referred to,
nor filed with or furnished to any governmental agency or other person or
entity, without the prior written consent of this firm.
We hereby consent to the filing of this opinion letter as Exhibit 5.2
to the Current Report on Form 8-K of the Company. In giving this consent, we do
not thereby admit that we are an "expert" within the meaning of the Securities
Act of 1933, as amended.
Very truly yours,
/s/ Sirote & Permutt, P.C.
--------------------------------
SIROTE & PERMUTT, P.C.
4
