UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 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): Sept. 24, 1997
-----------------
PARKWAY PROPERTIES, INC.
- ------------------------------------------------------------------
(Exact name of Registrant as specified in its charter)
Maryland 1-11533 74-2123597
- ------------------------------------------------------------------
(State or other (Commission File Number) (IRS Employer
jurisdiction of Identification
incorporation) Number)
One Jackson Place Suite 1000
188 East Capitol Street
P. O. Box 24647
Jackson, Mississippi 39225-4647
- ------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (601) 948-4091
---------------
- ------------------------------------------------------------------
(Former name or former address, if changed since last report)
FORM 8-K
PARKWAY PROPERTIES, INC.
Item 5. Other Events.
On September 24, 1997, Parkway Properties, Inc. closed its
previously announced sale of 3 million shares of its Common
Stock under its existing shelf registration statement at a
purchase price of $3311/16 per share. PaineWebber Incorporated
led the underwriting group comprised of A.G. Edwards & Sons,
Inc., Morgan Keegan & Company, Inc. and Wheat, First Securities,
Inc. The net proceeds of the offering (approximately $95.1
million net of commissions and expenses) will be used for the
repayment of approximately $37.1 million of outstanding variable
rate indebtedness and the purchase of office properties.
Following this transaction, the Company had 9,307,988 shares of
Common Stock outstanding.
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
(1) Underwriting Agreement between PaineWebber
Incorporated, A.G. Edwards & Sons, Inc. ,Morgan Keegan &
Company, Inc. and Wheat, First Securities, Inc. as
representatives of the several underwriters and Parkway
Properties, Inc. dated September 18, 1997. Parkway agrees to
furnish supplementally to the Securities and Exchange
Commission on request a copy of any omitted schedule or
exhibit to this agreement.
FORM 8-K
PARKWAY PROPERTIES, INC.
SIGNATURES
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.
DATE: September 24, 1997 PARKWAY PROPERTIES, INC.
BY: /s/Sarah P. Clark
Sarah P. Clark
Vice President,
Chief Financial Officer,
Treasurer and Secretary
EXECUTION COPY
3,000,000 Shares
PARKWAY PROPERTIES, INC.
Common Stock
($0.001 Par Value)
UNDERWRITING AGREEMENT
September 18, 1997
PAINEWEBBER INCORPORATED
A.G. EDWARDS & SONS, INC.
MORGAN KEEGAN & COMPANY, INC.
WHEAT, FIRST SECURITIES, INC.
as representatives of the several underwriters,
c/o PaineWebber Incorporated
1285 Avenue of the Americas
New York, New York 10019
Dear Ladies and Gentlemen:
Parkway Properties, Inc., a Maryland corporation (the
"Company"), confirms its agreement with the Underwriters named
in Schedule A hereto (the "Underwriters") for whom PaineWebber
Incorporated, A.G. Edwards & Sons, Inc., Morgan Keegan &
Company, Inc. and Wheat, First Securities, Inc. are acting as
representatives, as follows:
1. Description of Securities. The Company proposes
to issue and sell to the Underwriters, severally and not
jointly, 3,000,000 shares of Common Stock, $0.001 par value (the
"Common Stock"). The shares of Common Stock to be issued and
sold by the Company are hereinafter referred to as the
"Securities".
2. Representations and Warranties of the Company.
The Company represents and warrants to and agrees with the
Underwriters that:
(i) A registration statement on Form
S-3 (File No. 333-29259 and pre-effective amendment no. 1
thereto, with respect to the Securities, including a
prospectus, have been carefully prepared by the Company in
conformity with the requirements of the Securities Act of
1933, as amended (the "Act") and the rules and regulations
(the "1933 Act Rules and Regulations") of the Securities
and Exchange Commission (the "Commission") thereunder, have
been filed with the Commission and declared effective.
Such registration statement and prospectus may have been
amended or supplemented prior to the date of this
Underwriting Agreement; any such amendment or supplement
was so prepared and filed, and any such amendment filed
after the effective date of such registration statement has
been declared effective. No stop order suspending the
effectiveness of either registration statement has been
issued, and no proceeding for that purpose has been
instituted or threatened by the Commission. A prospectus
supplement (the "Prospectus Supplement") setting forth the
terms of the offering, sale and plan of distribution of the
Securities and additional information concerning the
Company and its business has been or will be so prepared
and will be filed pursuant to Rule 424(b) of the 1933 Act
Rules and Regulations on or before the second business day
after the date hereof (or such earlier time as may be
required by the 1933 Act Rules and Regulations). Copies of
such registration statement and prospectus, any such
amendments or supplements and all documents incorporated by
reference therein that were filed with the Commission on or
prior to the date of this Underwriting Agreement (including
one fully executed copy of the registration statement and
of each amendment thereto for the Underwriters and their
counsel) have been delivered to the Underwriters and their
counsel. The registration statement, as it may have
heretofore been amended, is referred to herein as the
"Registration Statement," and the final form of prospectus
included in the Registration Statement, as supplemented by
the Prospectus Supplement, is referred to herein as the
"Prospectus." Any reference herein to the Registration
Statement, the Prospectus or any amendment or supplement
thereto shall be deemed to refer to and include the
documents incorporated by reference therein, and any
reference herein to the terms "amend," "amendment" or
"supplement" with respect to the Registration Statement or
Prospectus shall be deemed to refer to and include the
filing after the execution hereof of any document with the
Commission deemed to be incorporated by reference therein.
For purposes of this Underwriting Agreement, all references
to the Registration Statement and Prospectus or to any
amendment or supplement thereto shall be deemed to include
any copy filed with the Commission pursuant to its
Electronic Data Gathering Analysis and Retrieval System
("EDGAR"), and such copy shall be identical in content to
any Prospectus delivered to the Underwriters for use in
connection with the offering of the Securities.
(ii) Each part of the Registration
Statement, when such part became or becomes effective and
the Prospectus and any amendment or supplement thereto, on
the date of filing thereof with the Commission and at the
Closing Date (as hereinafter defined), and, if later, at an
Option Closing Date (as hereinafter defined), conformed or
will conform in all material respects with the requirements
of the Act and the 1933 Act Rules and Regulations; each
part of the Registration Statement, when such part became
or becomes effective, or when such part was filed with the
Commission, did not or 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; the Prospectus and any
amendment or supplement thereto, on the date of filing
thereof with the Commission and at the Closing Date, and,
if later, at an Option Closing Date, did not or will not
include an untrue statement of a material fact or omit to
state a material fact necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading; except that the foregoing shall
not apply to statements in, or omissions from, any such
document in reliance upon, and in conformity with, written
information concerning the Underwriters that was furnished
to the Company by the Underwriters specifically for use in
the preparation thereof.
(iii) The documents incorporated by
reference in the Registration Statement, the Prospectus,
any amendment or supplement thereto, when they became or
become effective under the Act or were or are filed with
the Commission under the Act or the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), as the case may
be, conformed or will conform in all material respects with
the requirements of the Act, the 1933 Act Rules and
Regulations, the Exchange Act and/or the rules and
regulations of the Commission thereunder (the "Exchange Act
Rules and Regulations"), as applicable.
(iv) The consolidated financial statements
of the Company together with the related schedules and
notes thereto, set forth or included or incorporated by
reference in the Registration Statement and Prospectus
fairly present the financial condition of the Company and
its consolidated subsidiaries as of the dates indicated and
the results of operations, changes in financial position,
stockholders' equity and cash flows for the periods therein
specified, in conformity with generally accepted accounting
principles consistently applied throughout the periods
involved (except as otherwise stated therein). The summary
and selected financial and statistical data included or
incorporated by reference in the Registration Statement and
the Prospectus present fairly the information shown therein
and, to the extent based upon or derived from the financial
statements, have been compiled on a basis consistent with
the financial statements presented therein. In addition,
the pro forma financial statements of the Company, and the
related notes thereto, included or incorporated by
reference in the Registration Statement and the Prospectus
present fairly the information shown therein, have been
prepared in accordance with the Commission's rules and
guidelines with respect to pro forma financial statements
and have been properly compiled on the basis described
therein, and the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and
circumstances referred to therein. Furthermore, all
financial statements required by Rule 3-14 of Regulation S-
X ("Rule 3-14") have been included or incorporated by
reference in the Registration Statement and the Prospectus
and any such financial statements are in conformity with
the requirements of Rule 3-14. No other financial
statements are required to be set forth or to be
incorporated by reference in the Registration Statement or
the Prospectus under the Act or the 1933 Act Rules and
Regulations thereunder.
(v) Ernst & Young LLP, whose reports are
incorporated by reference in the Registration Statement,
are and, during the periods covered by their reports, were
independent public accountants as required by the Act and
the 1933 Act Rules and Regulations.
(vi) The only subsidiaries (as defined in
the 1933 Act Rules and Regulations) of the Company are the
subsidiaries listed on Schedule B hereto (the
"Subsidiaries"). Each of the Company and its Subsidiaries
has been duly incorporated or formed, as the case may be,
and is an existing corporation, general or limited
partnership, or other legal entity, as the case may be, in
good standing under the laws of its jurisdiction of
incorporation or formation, as the case may be. The
Company and each of its Subsidiaries has full power and
authority (corporate and other) to conduct its business as
described in the Registration Statement and Prospectus, and
is duly qualified or registered to do business in each
jurisdiction in which it owns or leases real property or in
which the conduct of its business requires such
qualification or registration except where the failure to
be so qualified or registered, considering all such cases
in the aggregate, would not have a material adverse effect
on the business, properties, financial position or results
of operations of the Company and its Subsidiaries taken as
a whole; and, other than the Subsidiaries, the Company owns
no stock or other beneficial interest in any corporation,
partnership, joint venture or other business entity.
(vii) All of the issued and outstanding
capital stock or ownership interests of each Subsidiary has
been duly authorized and are validly issued, fully paid and
nonassessable and is wholly-owned by the Company, directly
or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(viii) All of the issued and outstanding
shares of capital stock of the Company have been duly
authorized and are validly issued, fully paid and
nonassessable and conform to the description thereof in the
Prospectus. The stockholders of the Company have no
preemptive rights with respect to the Securities.
(ix) The Securities will be as of the
Closing Date, and the Optional Securities (as hereinafter
defined) will be as of any Option Closing Date, duly
authorized by the Company for issuance and sale pursuant to
this Underwriting Agreement; and when issued and delivered
by the Company pursuant to this Underwriting Agreement
against payment of the consideration therefor specified
herein, will be validly issued, fully paid and
nonassessable. The Securities conform to the description
thereof in the Prospectus and will not be subject to any
preemptive rights of any securityholder of the Company.
(x) Except as contemplated in the
Prospectus, subsequent to the respective dates as of which
information is given in the Registration Statement and the
Prospectus, the Company and its Subsidiaries have not
incurred any liabilities or obligations, direct or contin-
gent; or entered into any transactions, not in the ordinary
course of business, that are material to the Company and
its Subsidiaries on a consolidated basis; and there has not
been any material change in the capital stock or structure,
short-term debt or long-term debt of the Company and its
Subsidiaries; or any material adverse change, or any
development that is reasonably likely to involve a
prospective material adverse change, in the condition
(financial or other), business, prospects, net worth or
results of operations of the Company and its Subsidiaries
on a consolidated basis; and, except for regular dividends
on the Company's Common Stock, in amounts per share that
are consistent with past practice or the charter documents
of the Company, there has been no dividend or distribution
of any kind declared, paid or made by the Company on any
class of its capital stock.
(xi) Except as set forth in the Prospectus,
there is not pending or, to the knowledge of the Company,
threatened any action, suit or proceeding to which the
Company, any of its Subsidiaries or any of its officers or
directors is a party, or that any of its properties or
other assets is the subject of, before or by any court or
governmental agency or body, that is reasonably likely to
result in any material adverse change in the condition
(financial or other), business, prospects, net worth or
results of operations of the Company and its Subsidiaries,
or might materially and adversely affect their properties
or other assets.
(xii) During the period of at least the
last 24 calendar months prior to the date of this
Underwriting Agreement, the Company has timely filed with
the Commission all documents and other material required to
be filed pursuant to Sections 13, 14 and 15(d) under the
Exchange Act.
(xiii) There are no contracts or documents
of the Company that are required to be filed as exhibits to
the Registration Statement or to any of the documents
incorporated by reference therein by the Act or the
Exchange Act or by the rules and regulations of the
Commission thereunder that have not been so filed.
(xiv) This Underwriting Agreement has been
duly authorized, executed and delivered by the Company.
(xv) The execution and performance of this
Underwriting Agreement and the consummation of the
transactions contemplated herein will not result in a
breach or violation of any of the terms and provisions of,
or constitute a default under, (i) any statute, agreement
or instrument to which the Company or its Subsidiaries is a
party or by which they are bound or to which any of the
property or other assets of the Company or its Subsidiaries
is subject, (ii) the articles of incorporation, by-laws,
certificate of general or limited partnership, partnership
agreement or other organizational document, as applicable,
of the Company or its Subsidiaries, or (iii) any statute,
order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or its
Subsidiaries or any of their properties or other assets; no
consent, approval, authorization or order of, filing with,
or notice to any court or governmental agency or body is
required for the consummation of the transactions
contemplated by this Underwriting Agreement in connection
with the issuance or sale of the Securities by the Company,
except such as may be required under the Act and applicable
state securities, blue sky, or real estate syndication
laws, if any, or pursuant to the listing requirements of
the New York Stock Exchange ("NYSE") or pursuant to the by-
laws of the National Association of Securities Dealers,
Inc. ("NASD"); and the Company has full power and authority
to authorize, issue and sell the Securities as contemplated
by this Underwriting Agreement, free of any preemptive
rights.
(xvi) The Company and its Subsidiaries have
complied in all respects with all laws, regulations and
orders applicable to them or their respective businesses;
the Company and its Subsidiaries are not in default under
any indenture, mortgage, deed of trust, voting trust
agreement, loan agreement, bond, debenture, note agreement
or evidence of indebtedness, lease, contract or other
agreement or instrument to which they are a party or by
which they or any of their properties or other assets are
bound, violation of which would individually or in the
aggregate have a material adverse effect on the Company and
its Subsidiaries on a consolidated basis, and no other
party under any such agreement or instrument to which the
Company or its Subsidiaries are a party is, to the
knowledge of the Company, in default in any material
respect thereunder; and the Company and its Subsidiaries
are not in violation of their respective articles of
incorporation, by-laws, certificate of general or limited
partnership, partnership agreement or other organizational
documents, as the case may be.
(xvii) The Company and each of its
Subsidiaries have good and marketable title to all
properties and assets, as described in the Prospectus,
owned by them, free and clear of all liens, charges,
encumbrances or restrictions, except such as are described
in the Prospectus or are not material in relation to the
business of the Company and its Subsidiaries, and the
Company and its Subsidiaries have valid, subsisting and
enforceable leases for the properties described in the
Prospectus as leased by the Company and its Subsidiaries
with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such
properties by the Company and its Subsidiaries; no tenant
under any of the leases pursuant to which the Company or
its Subsidiaries lease their properties has an option or
right of first refusal to purchase the premises demised
under such lease; the use and occupancy of each of the
properties of the Company and its Subsidiaries complies in
all material respects with all applicable codes and zoning
laws and regulations; the Company and its Subsidiaries have
no knowledge of any pending or threatened condemnation or
zoning change that will in any material respect affect the
size of, use of, improvement of, construction on, or access
to any of the properties of the Company and its
Subsidiaries; and the Company and its Subsidiaries have no
knowledge of any pending or threatened proceeding or action
that will in any manner materially affect the size of, use
of, improvements or construction on, or access to any of
the properties of the Company or its Subsidiaries.
(xviii) Title insurance in favor of the
Company and its Subsidiaries is maintained with respect to
each of the properties described in the Prospectus in an
amount at least equal to the cost of acquisition of such
property, except, in each case, where the failure to
maintain such title insurance is not reasonably likely to
have a material adverse effect on the condition, financial
or otherwise, or the earnings, business affairs or business
prospects of the Company and its Subsidiaries taken as a
whole.
(xix) The mortgages and deeds of trust
encumbering the properties and assets described or referred
to in the Prospectus are not convertible into the equity of
the Company or any Subsidiary.
(xx) Except as set forth in the Prospectus
Supplement, (i) there does not exist on any of the
properties described in the Prospectus any hazardous
substances, hazardous materials, toxic substances or waste
materials (collectively, "Hazardous Materials") in unlawful
quantities, (ii) there has not occurred on or off such
properties any unlawful spills, releases, discharges or
disposal of Hazardous Materials, 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 Company and
its Subsidiaries taken as a whole, and (iii) the Company
and its Subsidiaries have not failed to comply with all
applicable local, state and federal environmental laws,
regulations, ordinances and administrative and judicial
orders relating to the generation, recycling, sale,
storage, handling, transport and disposal of any Hazardous
Materials, except for such failures which are not
reasonably likely to have a material adverse effect on the
condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and
its Subsidiaries taken as a whole.
(xxi) Property and casualty insurance in
favor of each of the Company and its Subsidiaries is
maintained with respect to each of the properties owned by
each of them in an amount and on such items as is
reasonable and customary for businesses of this type.
(xxii) Except for those entities listed on
Schedule C hereto, no holder of outstanding shares of
capital stock of the Company has any rights to the
registration of shares of capital stock of the Company
which would or could require such securities to be included
in the Registration Statement.
(xxiii) Subsequent to the respective dates
as of which information is given in the Registration
Statement and the Prospectus, except as described therein,
(i) there has not been any material adverse change in the
assets or properties, business, results of operations,
prospects or condition (financial or otherwise) of the
Company or any of its Subsidiaries, whether or not arising
from transactions in the ordinary course of business; (ii)
neither the Company nor any of its Subsidiaries has
sustained any material loss or interference with its
assets, businesses or properties (whether owned or leased)
from fire, explosion, earthquake, flood or other calamity,
whether or not covered by insurance, or from any labor
dispute or any court or legislative or other governmental
action, order or decree; and (iii) neither the Company nor
any of its Subsidiaries has undertaken any liability or
obligation, direct or contingent, except such liabilities
or obligations undertaken in the ordinary course of
business.
(xxiv) The Company has filed all federal,
state, local and foreign income tax returns which have been
required to be filed and has paid all taxes indicated by
said returns and all assessments received by it to the
extent that such taxes have become due.
(xxv) Each approval, consent, order,
authorization, designation, declaration or filing by or
with any regulatory, administrative or other governmental
body necessary in connection with the execution and
delivery by the Company of this Underwriting Agreement and
the consummation of the transactions herein contemplated
has been obtained or made and is in full force and effect.
(xxvi) The Company and its Subsidiaries
hold all material licenses, certificates and permits from
governmental authorities which are necessary to the conduct
of their businesses and are in compliance with the terms
and conditions of such licenses, certificates and permits;
and the Company and its Subsidiaries have not infringed on
any patents, patent rights, trade names, trademarks or
copyrights, which infringement is material to the business
of the Company and its Subsidiaries taken as a whole.
(xxvii) The Company and its Subsidiaries
are conducting their respective businesses in material
compliance with all applicable laws, rules and regulations
of the jurisdictions in which they are conducting business,
including, without limitation, the Americans with
Disabilities Act of 1990 and all applicable local, state
and federal employment, truth-in-advertising, franchising
and immigration laws and regulations, except where the
failure to be so in compliance would not have a material
adverse effect on the assets or properties, business,
results of operations, prospects or condition (financial or
otherwise) of the Company and its Subsidiaries taken as a
whole.
(xxviii) No transaction has occurred
between or among the Company and any of its officers or
directors or any affiliate or affiliates of any such
officer or director that is required to be described in and
is not described or incorporated by reference in the
Registration Statement and the Prospectus.
(xxix) The Company has not taken, nor will
it take, directly or indirectly, any action designed to or
which might reasonably be expected to cause or result in,
or which has constituted or which might reasonably be
expected to constitute, the stabilization or manipulation
of the price of shares of the Common Stock, to facilitate
the sale or resale of any of the Securities.
(xxx) Commencing with the taxable year
beginning January 1, 1997, the Company will be organized
and operating in conformity with the requirements for
qualification as a "real estate investment trust" under the
Internal Revenue Code of 1986, as amended (the "Code").
The Company's method of operation will permit it to meet
and to continue to meet the requirements for taxation as a
real estate investment trust under the Code. The Company
has no intention of changing its operations or engaging in
activities which would cause it to fail to qualify, or make
economically undesirable its continued qualification as, a
real estate investment trust.
(xxxi) Neither the Company nor any
Subsidiary is an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
(xxxii) The Securities have been
approved for listing subject to official notice of issuance
on the NYSE.
3. Purchase, Sale and Delivery of Securities. On
the basis of the representations, warranties and agreements
contained herein, but subject to the terms and conditions set
forth herein, the Company agrees to issue and sell the
Securities, severally and not jointly, to the several
Underwriters, and each of the Underwriters, severally and not
jointly, agrees to purchase from the Company, the number of
Securities set forth opposite that Underwriter's name in
Schedule A hereto, at a purchase price of $31.9175 per share
(the "Purchase Price") reflecting an underwriting discount equal
to 5.25%.
The Securities to be purchased by the Underwriters
will be delivered by the Company to the office of PaineWebber
Incorporated at 1285 Avenue of the Americas, New York, New York
10019, in accordance with the terms of this Underwriting
Agreement and against payment of the purchase price therefore by
wire transfer of same day funds payable to the order of the
Company in the amount of $95,752,500 at the bank account
designated in writing by the Company at least one business day
prior to the Closing Date, at 10:00 a.m., New York time, on
September 24, 1997 (or if the NYSE or American Stock Exchange or
commercial banks in The City of New York are not open on such
day, the next day on which such exchanges and banks are open),
or at such other time not later than eight full business days
thereafter as the Underwriters and the Company mutually agree,
such time being herein referred to as the "Closing Date." If
requested by the Underwriters, the Securities will be prepared
in definitive form and in such authorized denominations and
registered in such names as the Underwriters may request upon at
least two business days' prior notice to the Company and will be
made available for checking and packaging at the Underwriters'
offices at least one business day prior to the Closing Date.
4. Covenants. The Company covenants and agrees with
the Underwriters that:
(a) The Company will cause the Prospectus
Supplement to be filed as required by Section 2(a) hereof
(but only if the Underwriters or their counsel have not
reasonably objected thereto by notice to the Company after
having been furnished a copy a reasonable time prior to
filing) and will notify the Underwriters promptly of such
filing. During the period in which a prospectus relating
to the Securities is required to be delivered under the Act
or such date which is 90 days after the Closing Date,
whichever is later, the Company will notify the
Underwriters promptly of the time when any subsequent
amendment to the Registration Statement has become
effective or any subsequent supplement to the Prospectus
has been filed, of any request by the Commission for any
amendment or supplement to the Registration Statement or
Prospectus or for additional information; the Company will
prepare and file with the Commission, promptly upon the
Underwriters' request, any amendments or supplements to the
Registration Statement or Prospectus that, in the
Underwriters' opinion, may be necessary or advisable in
connection with the Underwriters' distribution of the
Securities; and the Company will file no amendment or
supplement to the Registration Statement or Prospectus
(other than any prospectus supplement relating to the
offering of other securities registered under the
Registration Statement or any document required to be filed
under the Exchange Act that upon filing is deemed to be
incorporated by reference therein) to which the
Underwriters or their counsel shall reasonably object by
notice to the Company after having been furnished a copy a
reasonable time prior to the filing.
(b) The Company will advise the
Underwriters, promptly after it shall receive notice or
obtain knowledge thereof, of the issuance by the Commission
of any stop order suspending the effectiveness of the
Registration Statement, of the suspension of the
qualification or registration of the Securities for
offering or sale in any jurisdiction, or of the initiation
or threatening of any proceeding for any such purpose; and
it will promptly use its best efforts to prevent the
issuance of any stop order or to obtain its withdrawal if
such a stop order should be issued.
(c) The Company will comply with all
requirements imposed upon it by the Act, the 1933 Act Rules
and Regulations, the Exchange Act and the Exchange Act
Rules and Regulations as from time to time in force, so far
as necessary to permit the continuance of sales of, or
dealings in, the Securities as contemplated by the
provisions hereof and the Prospectus. If during such
period where a prospectus relating to the Securities is
required to be delivered under the Act or such date which
is 90 days after the Closing Date, whichever is later, any
event occurs as a result of which, in the opinion of
Underwriters' counsel, the Registration Statement contains
an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading or the
Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in
the light of the circumstances then existing, not
misleading, or if during such period it is necessary to
amend or supplement the Registration Statement or
Prospectus to comply with the Act, the Company will
promptly notify the Underwriters and will amend or
supplement the Registration Statement or Prospectus (at the
expense of the Company) so as to correct such statement or
omission or effect such compliance.
(d) The Company will furnish to the
Underwriters copies of the Registration Statement, the
Prospectus (including all documents incorporated by
reference therein) and all amendments and supplements to
the Registration Statement and Prospectus that are filed
with the Commission during the period in which a prospectus
relating to the Securities is required to be delivered
under the Act or such date which is 90 days after the
Closing Date, whichever is later (including all documents
filed with the Commission during such period that are
deemed to be incorporated by reference therein), in each
case as soon as available and in such quantities as the
Underwriters may from time to time reasonably request.
(e) During the period of five years
commencing on the date upon which the Prospectus Supplement
is filed pursuant to Rule 424(b) under the Act, the Company
will furnish the Underwriters with copies of filings of the
Company under the Act and Exchange Act and with all other
financial statements and periodic and special reports it
distributes generally to the holders of any class of its
capital stock.
(f) The Company will make generally
available to its security holders as soon as practicable,
and in the manner contemplated by Rule 158 of the 1933 Act
Rules and Regulations but in any event not later than 15
months after the end of the Company's current fiscal
quarter, an earning statement (which need not be audited)
covering a 12-month period beginning after the date upon
which the Prospectus Supplement is filed pursuant to Rule
424(b) under the Act that shall satisfy the provisions of
Section 11(a) of the Act and Rule 158 of the 1933 Act Rules
and Regulations and will advise the Underwriters in writing
when such statement has been made available.
(g) Whether or not the transactions
contemplated by this Underwriting Agreement are consummated
or this Underwriting Agreement is terminated, the Company
will pay, or reimburse if paid by the Underwriters, all
costs and expenses incident to the performance of the
obligations of the Company under this Underwriting
Agreement, including but not limited to costs and expenses
of or relating to (i) the preparation, printing and filing
of the Registration Statement and exhibits thereto, each
preliminary prospectus, the Prospectus and any amendment or
supplement to the Registration Statement or the Prospectus,
(ii) the preparation and delivery of certificates
representing the Securities, (iii) the word processing,
printing and reproduction of this Underwriting Agreement,
(iv) the costs incurred by the Company in furnishing
(including costs of shipping, mailing and courier) such
copies of the Registration Statement, the Prospectus and
any preliminary prospectus, and all amendments and
supplements thereto, as may be requested for use in
connection with the offering and sale of the Securities by
the Underwriters or by dealers to whom Securities may be
sold, (v) the listing of the Securities on the NYSE, (vi)
any filings required to be made by the Underwriters with
the NASD, and the fees, disbursements and other charges of
Underwriters' counsel in connection therewith, (vii) the
registration or qualification of the Securities for offer
and sale under the securities or blue sky laws of such
jurisdictions designated by the Underwriters, including the
fees, disbursements and other charges of Underwriters'
counsel in connection therewith, and the preparation and
printing of a blue sky memoranda, (viii) counsel to the
Company, (ix) the transfer agent for the Securities and (x)
the Accountants.
(h) If this Underwriting Agreement shall be
terminated pursuant to any of the provisions hereof or if
for any reason the Company shall be unable to perform their
obligations hereunder, the Company will reimburse the
Underwriters for all out-of-pocket expenses (including the
fees, disbursements and other charges of Underwriters'
counsel) reasonably incurred by the Underwriters in
connection herewith.
(i) The Company will not at any time,
directly or indirectly, take any action designed to, or
which might reasonably be expected, to cause or result in,
or which has constituted or which might reasonably be
expected to constitute, the stabilization of the price of
the Common Stock to facilitate the sale or resale of any of
the Securities.
(j) The Company will apply the net proceeds
from the sale of the Securities as set forth under the
caption "Use of Proceeds" in the Prospectus Supplement.
(k) The Company, its executive officers and
the members of its Board of Directors will not, directly or
indirectly, offer, sell, contract to sell, grant any option
to sell, or otherwise dispose of any shares of capital
stock or securities convertible into or exchangeable for,
or any rights to purchase or acquire, shares of capital
stock, except for the exercise of stock options outstanding
on the date hereof, prior to the expiration of 90 days from
the date of this Underwriting Agreement without the
Underwriters' prior written consent.
(l) Commencing with its taxable year
beginning January 1, 1997, the Company will elect to, and
continue, to qualify as a "real estate investment trust"
under the Code, and will use its best efforts to continue
to meet the requirements to qualify as a "real estate
investment trust."
5. Conditions of Underwriters' Obligations. The
Underwriters obligation to purchase and pay for the Securities
as provided herein shall be subject to the accuracy, as of the
date hereof and the Closing Date (as if made at the Closing
Date), of the representations and warranties of the Company
herein, to the performance by the Company of their obligations
hereunder and to the following additional conditions:
(a) The Registration Statement shall have
been declared effective under the Act; the Prospectus shall
have been filed as required by Section 2(a) hereof; and no
stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that
purpose shall have been instituted or, to the Underwriters'
knowledge or the knowledge of the Company, threatened by
the Commission, nor has any state securities authority
suspended the qualification or registration of the
Securities for offering or sale in any jurisdiction and any
request of the Commission for additional information (to be
included in the Registration Statement or the Prospectus or
otherwise) shall have been complied with the satisfaction
of the Underwriters and Underwriters' counsel.
(b) The Underwriters shall not have advised
the Company that the Registration Statement or any
amendment thereto contains an untrue statement of fact that
in the opinion of the Underwriters or Underwriters' counsel
is material or omits to state a fact that in the opinion of
the Underwriters or Underwriters' counsel is material, and
is required to be stated therein or is necessary to make
the statements therein not misleading, or that the
Prospectus, or any amendment or supplement thereto,
contains an untrue statement of fact that in the opinion of
the Underwriters or Underwriters' counsel is material or
omits to state a fact that in the opinion of the
Underwriters or Underwriters' counsel is material, and is
necessary in light of the circumstance under which they
were made, to make the statements therein not misleading.
(c) Except as contemplated in the
Prospectus Supplement, subsequent to the respective dates
as of which information is included or incorporated by
reference in the Registration Statement and the Prospectus,
there shall not have been any change, on a consolidated
basis, in the equity capitalization, short-term debt or
long-term debt of the Company, or any adverse change, or
any development involving a prospective adverse change, in
the condition (financial or other), business, prospects,
net worth or results of operations of the Company or its
Subsidiaries or any adverse change in the rating assigned
to any securities of the Company, that, in the
Underwriters' judgment, makes it impractical or inadvisable
to offer or deliver the Securities on the terms and in the
manner contemplated in the Prospectus.
(d) The Underwriters shall have received
the opinions of Jaeckle Fleischmann & Mugel, LLP, counsel
for the Company, and Piper & Marbury, L.L.P., special
Maryland counsel to the Company (as to which, Jaeckle
Fleischmann & Mugel, LLP and Rogers & Wells may rely on),
each dated the Closing Date, in form and substance
satisfactory to Underwriters' counsel to the effect that
(i) Each of the Company and its
Subsidiaries has been duly incorporated or formed, as
the case may be, and is validly existing as a
corporation, general or limited partnership, or other
legal entity, as the case may be, in good standing
under the laws of its jurisdiction of incorporation or
formation, as the case may be, and has full power
(corporate or other) and authority to conduct its
business as described in the Registration Statement
and Prospectus, and is duly qualified or registered to
do business in each jurisdiction in which it owns or
leases real property or in which the conduct of its
business requires such qualification or registration,
except where the failure to be so qualified or
registered, considering all such cases in the
aggregate, does not involve a material risk to the
business, properties, financial position or results of
operations of the Company and its Subsidiaries taken
as a whole;
(ii) The Company has authorized and issued
capital stock as set forth in its Quarterly Report on
Form 10-Q for the quarter ended June 30, 1997, all of
the issued and outstanding shares of capital stock of
the Company have been duly and validly authorized and
issued; and all of the issued and outstanding shares
of capital stock of the Company are fully paid and
nonassessable and none of them was issued in violation
of any preemptive or other similar right. The
Securities have been duly authorized by the Company
for issuance and sale and when issued and sold
pursuant to this Underwriting Agreement will be duly
and validly issued, fully paid and nonassessable and
none of them will have been issued in violation of any
preemptive or other similar right. Except as
disclosed in the Registration Statement and the
Prospectus, there is no outstanding option, warrant or
other right calling for the issuance of, and, to the
knowledge of such counsel, no commitment, plan or
arrangement to issue, any share of capital stock of
the Company or any security convertible into,
exercisable for, or exchangeable for capital stock of
the Company. Except as described in Schedule 1
thereto, no holder of any security of the Company has
the right to have any security owned by such holder
included for registration in the Registration
Statement or to demand registration of any security
owned by such holder during the 180 days after the
date of this Underwriting Agreement. The issued and
outstanding capital stock of the Company and the
Securities conform, or will conform, in all material
respects to the descriptions thereof contained in the
Registration Statement and the Prospectus. The form
of certificate used to evidence the Securities is in
due and proper form and complies with all applicable
statutory requirements, with any applicable
requirements of the Company's organizational documents
and with the requirements of the NYSE.
(iii) The Registration Statement has become
effective under the Act, the Prospectus Supplement has
been filed as required by Section 2(a) hereof and, to
the best knowledge of such counsel, after due inquiry,
no stop order suspending the effectiveness of the
Registration Statement has been issued and no
proceeding for that purpose has been instituted or
threatened by the Commission;
(iv) Each part of the Registration
Statement, when such part became effective, and the
Prospectus and any amendment or supplement thereto, on
the date of filing thereof with the Commission and at
the Closing Date, complied as to form in all material
respects with the requirements of the Act and the 1933
Act Rules and Regulations, and such counsel has no
reason to believe that either (i) any part of the
Registration Statement, when such part became
effective or was filed under the Act or Exchange Act,
contained an untrue statement of a material fact or
omitted to state a material fact required to be stated
therein or necessary to make the statements therein
not misleading or (ii) the Prospectus and any
amendment or supplement thereto, on the date of filing
thereof with the Commission or at the Closing Date,
included an untrue statement of a material fact or
omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances
under which they were made, not misleading; and the
documents incorporated by reference in the
Registration Statement or Prospectus or any amendment
or supplement thereto, when they became effective
under the Act or were filed with the Commission under
the Act or Exchange Act, as the case may be, complied
as to form in all material respects with the
requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the
Commission thereunder; it being understood that such
counsel need express no opinion as to the financial
statements or other financial data included in any
other documents mentioned in this clause;
(v) The descriptions in the Registration
Statement and Prospectus of statutes, legal and
governmental proceedings, contracts and other
documents are accurate and fairly present the
information required to be shown; and such counsel
does not know of any statutes or legal or governmental
proceedings required to be described in the Prospectus
that are not described as required, or of any
contracts or documents of a character required to be
described in the Registration Statement or Prospectus
(or required to be filed under the Exchange Act if
upon such filing they would be incorporated by
reference therein) or to be filed as exhibits to the
Registration Statement that are not described and
filed as required;
(vi) This Underwriting Agreement has been
duly authorized, executed and delivered by the
Company; the execution, delivery and performance of
this Underwriting Agreement and the consummation of
the transactions contemplated herein will not result
in a breach or violation of any of the terms and
provisions of, or constitute a default under, (a) any
statute, indenture, mortgage, deed of trust, voting
trust agreement, loan agreement, bond, debenture, note
agreement or evidence of indebtedness, lease, contract
or other agreement or instrument known to such counsel
to which the Company or its Subsidiaries are a party
or by which they are bound or to which any of the
property or other assets of the Company or its
Subsidiaries is subject, (b) the articles of
incorporation, by-laws, certificate of general or
limited partnership, partnership agreement, or other
organizational document of the Company or any of its
Subsidiaries, as applicable, or (c) any order, rule or
regulation known to such counsel of any court or
governmental agency or body having jurisdiction over
the Company or its Subsidiaries or any of their
properties or other assets; and no consent, approval,
authorization, notice to, order of, or filing with,
any court or governmental agency or body is required
for the consummation of the transactions contemplated
by this Underwriting Agreement in connection with the
issuance or sale of the Securities by the Company,
except such as have been obtained under the Act or
from the NYSE and the NASD;
(vii) Commencing with the taxable year
beginning January 1, 1997, the Company has
continuously been organized and operated in conformity
with the requirements for qualification as a "real
estate investment trust" under the Code. The
Company's method of operation will permit it to
continue to meet the requirements for taxation as a
"real estate investment trust" under the Code. The
federal income tax treatment described in the
Prospectus under the caption "Federal Income Tax
Considerations" is accurate;
(viii) The agreement of the Company that
for a period of 90 days from the date of this
Underwriting Agreement it will not, except for the
exercise of stock options outstanding on the date
hereof, without the Underwriters' prior written
consent, offer, sell, contract to sell, grant any
option to sell, or otherwise dispose of, directly or
indirectly, any shares of capital stock or securities
convertible into or exchangeable for, or any rights to
purchase or acquire, shares of capital stock owned by
it, has been duly and validly executed and delivered
by it and constitute the legal, valid and binding
obligation of the Company enforceable against it in
accordance with its terms, except as the
enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of
creditors' rights generally and by general equitable
principles;
(ix) To the best of such counsel's
knowledge, neither the Company nor any of its
Subsidiaries is in violation of any term or provision
of their respective articles of incorporation, by-
laws, certificate of general or limited partnership,
partnership agreement or other organizational
document, as applicable, or in violation of or default
under any indenture, mortgage, deed of trust, voting
trust agreement, loan agreement, bond, debenture, note
agreement or evidence of indebtedness, lease,
contract, permit, judgment, decree, order, statute,
rule or regulation;
(x) To the best of such counsel's
knowledge, there is no litigation or governmental or
other proceeding or investigation, before any court or
before or by any public body or board pending or
threatened against, or involving the assets,
properties or businesses of, the Company or any of its
Subsidiaries, involving the Company's or any of its
Subsidiaries' officers or directors or to which any of
the Company's or any of its Subsidiaries' properties
or other assets is subject which would have a material
adverse effect upon the assets or properties,
business, results of operations, prospects or
condition (financial or otherwise) of the Company and
its Subsidiaries taken as a whole; and
(xi) Neither the Company nor any of its
Subsidiaries is an "investment company" within the
meaning of the Investment Company Act of 1940, as
amended.
(e) The Underwriters shall have received
from Rogers & Wells, Underwriters' counsel, such opinion or
opinions, dated the Closing Date, with respect to the
organization of the Company, the validity of the
Securities, the Registration Statement, the Prospectus and
other related matters as the Underwriters reasonably may
request, and such counsel shall have received such papers
and information as they request to enable them to pass upon
such matters.
(f) At the time of execution of this
Underwriting Agreement and at the Closing Date, the
Underwriters shall have received a letter, dated the date
of delivery thereof, from Ernst & Young LLP, the
independent public accountants of the Company, in the form
previously agreed to by the Underwriters.
(g) The Underwriters shall have received
from the Company a certificate, signed by the President or
a Vice President and by the principal financial or
accounting officer of the Company, dated the Closing Date,
to the effect that, to the best of their knowledge based
upon reasonable investigation:
(i) The representations and warranties of
the Company in this Underwriting Agreement are true
and correct, as if made at and as of the Closing Date,
and the Company has complied with all the agreements
and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing
Date;
(ii) No stop order suspending the
effectiveness of the Registration Statement has been
issued, and no proceeding for that purpose has been
instituted or is threatened by the Commission nor has
any state securities authority suspended the
qualification or registration of the Securities for
offering or sale in any jurisdiction;
(iii) Since the effective date of the
Registration Statement, there has occurred no event
required to be set forth in an amendment or supplement
to the Registration Statement or Prospectus that has
not been so set forth, and there has been no document
required to be filed under the Exchange Act and the
Exchange Act Rules and Regulations of the Commission
thereunder that upon such filing would be deemed to be
incorporated by reference in the Prospectus that has
not been so filed;
(iv) Since the respective dates as of which
information is given in the Registration Statement and
the Prospectus, (a) there has not been, and no
development has occurred which could reasonably be
expected to result in, a material adverse change in
the general affairs, business, business prospects,
properties, management, condition (financial or
otherwise) or results of operations of the Company and
its Subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of
business, in each case other than as set forth in or
contemplated by the Registration Statement and the
Prospectus and (b) neither the Company nor any of its
Subsidiaries has sustained any material loss or
interference with its business or properties from
fire, explosion, flood or other casualty, whether or
not covered by insurance, or from any labor dispute or
any court or legislative or other governmental action,
order or decree, which is not set forth in the
Registration Statement and the Prospectus; and
(v) such other matters as the Underwriters
or Underwriters' counsel may reasonably request.
(h) On or prior to the Closing Date, the
Underwriters shall have received the executed agreements
referred to in Section 4(k).
(i) Prior to the Closing Date, the
Securities shall have been duly authorized for listing by
the NYSE upon official notice of issuance.
(j) The NASD shall have approved the
underwriting terms and arrangements and such approval shall
not have been withdrawn or limited.
(k) All such opinions, certificates,
letters and other documents will be in compliance with the
provisions hereof only if they are satisfactory in form and
substance to the Underwriters and Underwriters' counsel.
The Company will furnish the Underwriters with such
conformed copies of such opinions, certificates, letters
and other documents as the Underwriters shall reasonably
request and the Company shall furnish to the Underwriters
such further certificates and documents as the Underwriters
shall have reasonably requested.
6. Indennificaton and Contribution
(l) The Company agrees to indemnify and
hold the Underwriters harmless, their directors, officers,
employees and agents and each person, if any, who controls
them within the meaning of Section 15 of the Act or Section
20 of the Exchange Act from and against any and all losses,
claims, liabilities, expenses and damages (including, but
not limited to, any and all investigative, legal and other
expenses reasonably incurred in connection with, and any
and all amounts paid in settlement of, any action, suit or
proceeding between any of the indemnified parties and any
indemnifying parties or between any indemnified party and
any third party, or otherwise, or any claim asserted), as
and when incurred to which the Underwriters, or any such
person, may become subject under the Act, the Exchange Act
or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims,
liabilities, expenses or damages arise out of or are based
on (i) any untrue statement or alleged untrue statement of
a material fact contained in any preliminary prospectus,
the Registration Statement or the Prospectus or any
amendment or supplement to the Registration Statement or
the Prospectus or in any documents filed under the Exchange
Act and deemed to be incorporated by reference into the
Prospectus, or in any application or other document
executed by or on behalf of the Company or based on written
information furnished by or on behalf of the Company filed
in any jurisdiction in order to qualify the Securities
under the securities or blue sky laws thereof or filed with
the Commission, (ii) the omission or alleged omission to
state in such document a material fact required to be
stated in it or necessary to make the statements in it not
misleading or (iii) any act or failure to act or any
alleged act or failure to act by the Underwriters in
connection with, or relating in any manner to, the
Securities or the offering contemplated hereby, and which
is included as part of or referred to in any loss, claim,
damage, liability or action arising out of or based upon
matters covered by clause (i) or (ii) above (provided that
the Company shall not be liable under this clause (iii) to
the extent it is finally judicially determined by a court
of competent jurisdiction that such loss, claim, damage,
liability or action resulted directly from any such acts or
failures to act undertaken or omitted to be taken by the
Underwriters through their gross negligence or willful
misconduct); provided that the Company will not be liable
to the extent that such loss, claim, liability, expense or
damage arises from the sale of the Securities in the public
offering to any person and is based on an untrue statement
or omission or alleged untrue statement or omission made in
reliance on and in conformity with information relating to
the Underwriters furnished in writing to the Company by the
Underwriters expressly for inclusion in the Registration
Statement or the Prospectus. The Underwriters confirm to
the Company and the Company acknowledges that only the
following information appearing in the Prospectus with
respect to the public offering of the Securities has been
furnished to the Company by the Underwriters for use in the
Prospectus: (i) the names of the Underwriters contained on
the cover page and back cover page of the Prospectus
Supplement; (ii) the stabilization legend on the inside
front cover page of the Prospectus Supplement; and
(iii) the information in the first, second and sixth
paragraphs under the caption "Underwriting" in the
Prospectus Supplement. This indemnity agreement will be in
addition to any liability that the Company might otherwise
have.
(m) The Underwriters will indemnify and
hold harmless the Company, each person, if any, who
controls the Company within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, each director of
the Company and each officer of the Company who signs the
Registration Statement to the same extent as the foregoing
indemnity from the Company to the Underwriters, but only
insofar as losses, claims, liabilities, expenses or damages
arise out of or are based on any untrue statement or
omission or alleged untrue statement or omission made in
reliance on and in conformity with information relating to
the Underwriters furnished in writing to the Company by the
Underwriters expressly for use in the Registration
Statement, the preliminary prospectus or the Prospectus.
This indemnity will be in addition to any liability that
the Underwriters might otherwise have; provided, however,
that in no case shall the Underwriters be liable or
responsible for any amount in excess of the underwriting
discounts and commissions received by the Underwriters.
(n) Any party that proposes to assert the
right to be indemnified under this Section 6 will, promptly
after receipt of notice of commencement of any action
against such party in respect of which a claim is to be
made against an indemnifying party or parties under this
Section 6, notify each such indemnifying party of the
commencement of such action, enclosing a copy of all papers
served, but the omission so to notify such indemnifying
party will not relieve it from any liability that it may
have to any indemnified party under the foregoing
provisions of this Section 6 unless, and only to the extent
that, such omission results in the forfeiture of
substantive rights or defenses by the indemnifying party.
If any such action is brought against any indemnified party
and it notifies the indemnifying party of its commencement,
the indemnifying party will be entitled to participate in
and, to the extent that it elects by delivering written
notice to the indemnified party promptly after receiving
notice of the commencement of the action from the
indemnified party, jointly with any other indemnifying
party similarly notified, to assume the defense of the
action, with counsel satisfactory to the indemnified party,
and after notice from the indemnifying party to the
indemnified party of its election to assume the defense,
the indemnifying party will not be liable to the
indemnified party for any legal or other expenses except as
provided below and except for the reasonable costs of
investigation subsequently incurred by the indemnified
party in connection with the defense. The indemnified
party will have the right to employ its own counsel in any
such action, but the fees, expenses and other charges of
such counsel will be at the expense of such indemnified
party unless (1) the employment of counsel by the
indemnified party has been authorized in writing by the
indemnifying party, (2) the indemnified party has
reasonably concluded (based on advice of counsel) that
there may be legal defenses available to it or other
indemnified parties that are different from or in addition
to those available to the indemnifying party, (3) a
conflict or potential conflict exists (based on advice of
counsel to the indemnified party) between the indemnified
party and the indemnifying party (in which case the
indemnifying party will not have the right to direct the
defense of such action on behalf of the indemnified party)
or (4) the indemnifying party has not in fact employed
counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement
of the action, in each of which cases the reasonable fees,
disbursements and other charges of counsel will be at the
expense of the indemnifying party or parties. It is
understood that the indemnifying party or parties shall
not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the
reasonable fees, disbursements and other charges of more
than one additional firm admitted to practice in such
jurisdiction at any one time for all such indemnified party
or parties. All such fees, disbursements and other charges
will be reimbursed by the indemnifying party promptly as
they are incurred. An indemnifying party will not be liable
for any settlement of any action or claim effected without
its written consent (which consent will not be unreasonably
withheld); provided however, no indemnifying party shall,
without the prior written consent of each indemnified
party, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action or
proceeding relating to the matters contemplated by this
Section 6 (whether or not any indemnified party is a party
thereto), unless such settlement, compromise or consent
includes an unconditional release of each indemnified party
from all liability arising or that may arise out of such
claim, action or proceeding. Notwithstanding any other
provision of this Section 6(c), if at any time an
indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and
expenses of counsel, such indemnifying party agrees that it
shall be liable for any settlement effected without its
written consent if (i) such settlement is entered into more
than 45 days after receipt by such indemnifying party of
the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into
and (iii) such indemnifying party shall not have reimbursed
such indemnified party in accordance with such request
prior to the date of such settlement.
(o) In order to provide for just and
equitable contribution in circumstances in which the
indemnification provided for in the foregoing paragraphs of
this Section 6 is applicable in accordance with its terms
but for any reason is held to be unavailable from the
Company or the Underwriters, the Company and the
Underwriters will contribute to the total losses, claims,
liabilities, expenses and damages (including any
investigative, legal and other expenses reasonably incurred
in connection with, and any amount paid in settlement of,
any action, suit or proceeding or any claim asserted, but
after deducting any contribution received by the Company
from persons other than the Underwriters, such as persons
who control the Company within the meaning of the Act,
officers of the Company who signed the Registration
Statement and directors of the Company, who also may be
liable for contribution) to which the Company and the
Underwriters may be subject in such proportion as shall be
appropriate to reflect the relative benefits received by
the Company on the one hand and the Underwriters on the
other. The relative benefits received by the Company on
the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover page of
the Prospectus Supplement. If, but only if, the allocation
provided by the foregoing sentence is not permitted by
applicable law, the allocation of contribution shall be
made in such proportion as is appropriate to reflect not
only the relative benefits referred to in the foregoing
sentence but also the relative fault of the Company on the
one hand, and the Underwriters, on the other, with respect
to the statements or omissions which resulted in such loss,
claim, liability, expense or damage, or action in respect
thereof, as well as any other relevant equitable
considerations with respect to such offering. Such
relative fault shall be determined by reference to whether
the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact
relates to information supplied by the Company or the
Underwriters, the intent of the parties and their relative
knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable
if contributions pursuant to this Section 6(d) were to be
determined by pro rata allocation or by any other method of
allocation which does not take into account the equitable
considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss,
claim, liability, expense or damage, or action in respect
thereof, referred to above in this Section 6(d) shall be
deemed to include, for purpose of this Section 6(d), any
legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the
provisions of this Section 6(d), the Underwriters shall not
be required to contribute any amount in excess of the
underwriting discounts and commissions received by the
Underwriters and no person found guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of
the Act) will be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 6(d), any person who controls
a party to this Underwriting Agreement within the meaning
of the Act will have the same rights to contribution as
that party, and each officer of the Company who signed the
Registration Statement will have the same rights to
contribution as the Company, subject in each case to the
provisions hereof. Any party entitled to contribution,
promptly after receipt of notice of commencement of any
action against such party in respect of which a claim for
contribution may be made under this Section 6(d), will
notify any such party or parties from whom contribution may
be sought, but the omission so to notify will not relieve
the party or parties from whom contribution may be sought
from any other obligation it or they may have under this
Section 6(d). Except for a settlement entered into
pursuant to the last sentence of Section 6(c) hereof, no
party will be liable for contribution with respect to any
action or claim settled without its written consent (which
consent will not be unreasonably withheld).
(p) The indemnity and contribution
agreements contained in this Section 6 and the
representations and warranties of the Company contained in
this Underwriting Agreement shall remain operative and in
full force and effect regardless of (i) any investigation
made by or on behalf of the Underwriters, (ii) acceptance
of the Securities and payment therefor or (iii) any
termination of this Underwriting Agreement.
6. Representations and Agreements to Survive
Delivery. All representations, warranties and agreements of the
Company contained herein or in certificates delivered pursuant
hereto, and the Underwriters' agreements contained in Section 6
hereof, shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the
Underwriters or any controlling persons, or the Company or any
of its officers, directors or any controlling persons, and shall
survive delivery of and payment for the Securities hereunder.
7. Termination. The Underwriters shall have the
right by giving notice as hereinafter specified at any time at
or prior to the Closing Date, to terminate this Underwriting
Agreement if (i) the Company shall have failed, refused or been
unable, at or prior to the Closing Date, to perform any
agreement on its part to be performed hereunder, (ii) any other
condition of the Underwriters' obligations hereunder is not
fulfilled when due, (iii) trading on the NYSE shall have been
wholly suspended, (iv) minimum or maximum prices for trading
shall have been fixed, or maximum ranges for prices for the
Common Stock shall have been required on the NYSE by the NYSE or
by order of the Commission or any other governmental authority
having jurisdiction, (v) a banking moratorium shall have been
declared by federal or New York authorities, or (vi) an outbreak
of major hostilities in which the United States is involved, a
declaration of war by Congress, any other substantial national
or international calamity or any other event or occurrence of a
similar character shall have occurred since the execution of
this Underwriting Agreement that, in the Underwriters' judgment,
makes it impractical or inadvisable to proceed with the
completion of the sale of and payment for the Securities. Any
such termination shall be without liability of any party to any
other party with respect to Securities not purchased by reason
of such termination except that the provisions of Section 4(g)
and Section 6 hereof shall at all times be effective. If the
Underwriters elect to terminate this Underwriting Agreement as
provided in this Section, the Company shall be notified promptly
by the Underwriters by telephone, telex or telecopy, confirmed
by letter.
8. Notices. All notices or communications hereunder
shall be in writing and if sent to the Underwriters shall be
mailed, delivered, telexed or telecopied and confirmed to the
Underwriters at 1285 Avenue of the Americas, New York, New York
10019, c/o Real Estate investment Banking, attention: David R.
Jarvis (with copy to Jay L. Bernstein, Esq., c/o Rogers & Wells,
200 Park Avenue, New York, New York 10166), or if sent to the
Company, shall be mailed, delivered, telexed or telecopied and
confirmed to Steven G. Rogers, c/o the Company at 300 One
Jackson Place, 188 East Capitol Street, Jackson, Mississippi
39201 (with copy to Joseph P. Kubarek, Esq., c/o Jaeckle
Fleischmann & Mugel, LLP, Fleet Bank Building, Twelve Fountain
Plaza, Buffalo, New York 14202-2292). Any party to this
Underwriting Agreement may change such address for notices by
sending to the other party to this Underwriting Agreement
written notice of a new address for such purpose.
9. Parties. This Underwriting Agreement shall inure
to the benefit of, and be binding upon, the Company and the
Underwriters and their respective successors and the controlling
persons, officers, directors, employees and representatives
referred to in Section 6 hereof, and no other person will have
any right or obligation hereunder.
10. Applicable Law. This Underwriting Agreement
shall be governed by, and construed in accordance with, the laws
of the State of New York.
11. Over-allotment Option.
(a) In addition to the Securities being sold by the
Company and described in Section 1 hereof (which are referred to
herein as the "Firm Securities"), the Underwriters, at the
Underwriters' option, shall have the right to purchase from the
Company up to an aggregate 450,000 additional shares of Common
Stock ("Optional Securities"). The first two paragraphs of
Section 3 hereof shall be deemed to apply only to the purchase,
sale and delivery of the Firm Securities. References in those
two paragraphs to the "Securities" shall be deemed to be
references to the "Firm Securities;" except as otherwise
provided in this Section 12, other references in this
Underwriting Agreement to the "Securities" shall be deemed to
include the Firm Securities and the Optional Securities.
(b) Upon written notice from the Underwriters given
to the Company not more than 30 days subsequent to the date of
the public offering of the Securities, the Underwriters may
purchase all or less than all of the Optional Securities at the
purchase price per share to be paid for the Firm Securities.
Such Optional Securities may be purchased by the Underwriters
only for the purpose of covering over-allotments made in
connection with the sale of the Firm Securities. No Optional
Securities shall be sold or delivered unless the Firm Securities
previously have been, or simultaneously are, sold and delivered.
The right to purchase the Optional Securities or any portion
thereof may be surrendered and terminated at any time upon
notice by the Underwriters to the Company. The "Closing Date"
as defined in Section 3 hereof, shall be deemed to be the
"Closing Date," and the time for the delivery of, and payment
for, the Optional Securities, is herein referred to as the
"Option Closing Date" (which may be the Closing Date). The
Option Closing Date shall be determined by the Underwriters but
shall be not later than 10 days after the Underwriters give to
the Company written notice of election to purchase Optional
Securities. The preparation, registration, checking and
delivery of, and payment for, the Optional Securities shall
occur or be made in the same manner as provided in Section 3
hereof for the Firm Securities, except as the Underwriters and
the Company may otherwise agree.
(c) The conditions to the Underwriters' obligations
set forth in Section 5 shall be deemed to be conditions to the
Underwriters' obligation to purchase and pay for the Securities
to be purchased on each of the Closing Date and the Option
Closing Date, as the case may be; references in that Section and
in Sections 2, 8 and 9 hereof to the "Closing Date" shall be
deemed to be references to the Closing Date or the Option
Closing Date, as the case may be, and references to the
"Securities" in Section 5 hereof shall be deemed to be
references to the Securities to be purchased at such Closing
Date. A termination of this Underwriting Agreement as to the
Optional Securities after the Closing Date will not terminate
this Underwriting Agreement as to the Firm Securities.
13. Default by One or More of the Underwriters. If,
on either the Closing Date or the Option Closing Date, any
Underwriter defaults in the performance of its obligations under
this Agreement, the remaining non-defaulting Underwriters shall
be obligated to purchase the Securities which the defaulting
Underwriter agreed but failed to purchase on such Closing Date
in the respective proportions which the number of Firm
Securities set forth opposite the name of each remaining non-
defaulting Underwriter in Schedule A hereto bears to the total
number of Firm Securities set forth opposite the names of all
the remaining non-defaulting Underwriters in Schedule A hereto;
provided, however, that the remaining non-defaulting
Underwriters shall not be obligated to purchase any of the
Securities on such Closing Date if the total number of
Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase on such date exceeds 9.09% of the
total number of Securities to be purchased on such Closing Date,
and any remaining non-defaulting Underwriter shall not be
obligated to purchase more than 110% of the number of Securities
which it agreed to purchase on such Closing Date. If the
foregoing maximums are exceeded, the remaining non-defaulting
Underwriters, or those other underwriters satisfactory to the
Underwriters who so agree, shall have the right, but shall not
be obligated, to purchase, in such proportion as may be agreed
upon among them, all the Securities to be purchased on such
Closing Date. If the remaining Underwriters or other
underwriters satisfactory to the Underwriters do not elect to
purchase the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase on such Closing Date,
this Agreement (or, with respect to the Option Closing Date, the
obligation of the Underwriters to purchase, and of the Company
to sell, the Option Securities) shall terminate without
liability on the part of any non-defaulting Underwriter or the
Company, except that the Company will continue to be liable for
the payment of expenses to the extent set forth in Sections 4(g)
and 4(h). As used in this Agreement, the term "Underwriter"
includes, for all purposes of this Agreement unless the context
requires otherwise, any party not listed in Schedule A hereto
who, pursuant to this Section 13, purchases Firm Securities
which a defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have to the Company for
damages caused by its default. If other underwriters are
obligated or agree to purchase the Securities of a defaulting or
withdrawing Underwriter, either the Underwriters or the Company
may postpone the Closing Date for up to seven full business days
in order to effect any changes that in the opinion of counsel
for the Company or counsel for the Underwriters may be necessary
in the Registration Statement, the Prospectus or in any other
document or arrangement.
If the foregoing correctly sets forth the
understanding between the Company and the Underwriters, please
so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement
between the Company and the Underwriters.
Very truly yours,
PARKWAY PROPERTIES, INC.
By: /s/ Sarah P. Clark
Name: Sarah P. Clark
Title: Vice President, CFO,
Treasurer and Secretary
ACCEPTED as of the date first above
written
PAINEWEBBER INCORPORATED
By: /s/ David R. Jarvis
Name: David R. Jarvis
Title: Managing Director
For itself and as Representative
of the several Underwriters named
in Schedule A hereto
SCHEDULE A
Underwriter Number of
- ----------- Shares
---------
PaineWebber Incorporated.................................... 1,040,000
A.G. Edwards & Sons, Inc. .................................... 650,000
Morgan Keegan & Company, Inc. .................................455,000
Wheat, First Securities, Inc. .................................455,000
J.C. Bradford & Co. .......................................... 100,000
Harris Webb & Garrison, Inc. ................................. 100,000
Raymond James & Associates, Inc. ............................. 100,000
The Robinson-Humphrey Company, Inc. ...........................100,000
---------
Total................................................... 3,000,000
=========
SCHEDULE B
Subsidiaries
- ------------
1. Parkway Realty Services, Inc.
2. Parkway Congress Corporation
3. Parkway Atlanta, Inc.
4. Parkway Houston, Inc.
5. Parkway Ridgewood, Inc.
6. Parkway Virginia, Inc.
7. Parkway Capitol, Inc.
8. Parkway Carolina, Inc.
9 . Parkway Lamar, Inc.
10. Parkway Properties, L.P.
11. Parkway Properties General Partners, Inc.
12. Parkway Texas Corp.
13. Golf Properties, Inc.*
14. Sugar Creek Center Corp.
15. Wink/Parkway Partnership
- ----------------------------
*The Company owns no voting shares of Golf Properties, Inc. only non-voting
shares/
SCHEDULE C
Entities with Registration Rights
1. Delaware Group Dividend and Income Fund, Inc.
2. Delaware Pooled Trust, Inc. for the Real Estate
Investment Trust Portfolio
3. Charter Oak Partners
4. Pennsylvania Public School Employees Retirement System
5. Morgan Stanley U.S. Real Estate (Retail)
6. Morgan Stanley Institutional Fund Real Estate Portfolio
7. MS SIVAC Real Estate
