UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the
Securities Exchange Act of 1934
Date of Report (Date earliest event reported): February 23, 1998
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PARKWAY PROPERTIES, INC.
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(Exact name of Registrant as specified in its charter)
Maryland 1-11533 74-2123597
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(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
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (601) 948-4091
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(Former name or former address, if changed since last report)
FORM 8-K
PARKWAY PROPERTIES, INC.
Item 5. Other Events.
On February 23, 1998, Parkway Properties, Inc. closed its
previously announced sale of 451,128 shares of its Common Stock
under its existing shelf registration statement at a purchase
price of $33.25 per share to A.G. Edwards & Sons, Inc. The net
proceeds of the offering (approximately $14.2 million net of
commissions and expenses) will be used for the repayment of
approximately $14.2 million of outstanding variable rate
indebtedness. Following this transaction, the Company had
10,221,424 shares of Common Stock outstanding.
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
(1) Underwriting Agreement between A.G. Edwards &
Sons, Inc., Parkway Properties, Inc. and Parkway Properties
LP dated February 18, 1998. 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: February 23, 1998 PARKWAY PROPERTIES, INC.
BY: /s/Sarah P. Clark
Sarah P. Clark
Senior Vice President,
Chief Financial Officer,
Treasurer and Secretary
February 18, 1998
A.G. EDWARDS & SONS, INC.
One North Jefferson Avenue
St. Louis, Missouri 63103
The undersigned, Parkway Properties, Inc., a Maryland
corporation (the "Company") and Parkway Properties LP, a Delaware
limited partnership (the "Operating Partnership"; such Operating
Partnership together with the Company are hereinafter referred to
as the "Transaction Entities"), hereby confirm their agreements
with you (the "Underwriter") as follows:
1. Description of Shares. The Company proposes to issue
and sell to you 451,128 shares of its Common Stock (the "Common
Stock"), par value $.001 per share (the "Shares"). The Shares
are more fully described in the Prospectus hereinafter defined.
2. Purchase, Sale and Delivery of Shares. On the basis of
the representations, warranties and agreements herein contained,
but subject to the terms and conditions herein set forth, the
Company agrees to sell to you, and you agree to purchase from the
Company at a purchase price of $31.59 per share, 451,128 Shares.
The Company will deliver definitive certificates for the
Shares at the office of A.G. Edwards & Sons, Inc., 77 Water
Street, New York, New York ("Edwards' Office"), or such other
place as you and the Company may mutually agree upon (the "Place
of Closing"), for your account against payment to the Company of
the purchase price for the Shares sold to you by wire transfer of
immediately available funds, at 10:00 a.m., St. Louis time, on
February 23, 1998, or at such other time and date not later than
three full business days thereafter as you and the Company may
agree, such time and date of payment and delivery being herein
called the "Closing Date."
The certificates for the Shares so to be delivered will be
made available to you for inspection at Edwards' Office (or such
other place as you and the Company may mutually agree upon) at
least one full business day prior to the Closing Date and will be
in such names and denominations as you may request at least one
full business day prior to the Closing Date.
3. Representations, Warranties and Agreements of the
Transaction Entities. (a) The Transaction Entities, jointly and
severally, represent and warrant to and agree with you that:
(i) The Company meets the requirements for use of Form
S-3 under the Securities Act of 1933, as amended (the
"Act"); a registration statement (Registration No. 333-
29259) on Form S-3, including a prospectus relating to the
registration of the Shares and such other securities which
may be offered from time to time in accordance with Rule 415
under the Act, and such amendments to such registration
statement as may have been required to the date of this
Agreement, has been carefully prepared by the Company
pursuant to and in conformity with the requirements of the
Act, and the Rules and Regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder, was filed with the Commission
under the Act and have been declared effective by the
Commission. Copies of such registration statement,
including any amendments thereto, each related preliminary
prospectus contained therein, the exhibits, financial
statements and schedules have heretofore been delivered by
the Company to you. A prospectus supplement (the
"Prospectus Supplement") setting forth the terms of the
offering, sale and plan of distribution of the Shares 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 Rules and Regulations on or
before the second business day after the date hereof (or
such earlier time as may be required by the Rules and
Regulations). The term "Registration Statement" as used
herein means the registration statement, and the basic
prospectus included therein, as amended at the time it or
any amendment thereto became effective under the Act, or at
the time any Annual Report on Form 10-K is filed by the
Company with the Commission (the "Effective Date"),
including financial statements and all exhibits and all
documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the Act. Any document filed by the
Company under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") after the effective date of the
Registration Statement or the date of the Prospectus
Supplement and incorporated by reference in the Prospectus
shall be deemed to be included in the Registration Statement
and the Prospectus as of the date of such filing. The term
"Prospectus" as used herein means (i) the basic prospectus
included in the Registration Statement at the Effective
Date, as supplemented by the Prospectus Supplement as first
filed with the Commission pursuant to Rule 424(b) of the
Rules and Regulations, except that, if such basic prospectus
is amended or supplemented subsequent to the Effective Date,
the term "Prospectus" shall refer to the basic prospectus as
so amended or supplemented and as further supplemented by
the Prospectus Supplement or (ii) if no such filing is
required, the form of final prospectus included in the
Registration Statement at the Effective Date or (iii) if a
Term Sheet or Abbreviated Term Sheet (as such terms are
defined in Rule 434(b) and 434(c), respectively, of the
Rules and Regulations) is filed with the Commission pursuant
to Rule 424(b)(7) of the Rules and Regulations, the Term
Sheet or Abbreviated Term Sheet and the last Preliminary
Prospectus filed with the Commission prior to the time the
Registration Statement became effective, taken together
(including, in each case, the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the
Act). The term "Preliminary Prospectus" as used herein
shall mean a preliminary prospectus included at any time in
the Registration Statement.
(ii) The Commission has not issued, and is not to the
knowledge of the Company threatening to issue, an order
preventing or suspending the use of any Preliminary
Prospectus or the Prospectus nor instituted proceedings for
that purpose. Each Preliminary Prospectus at its date of
issue, the Registration Statement at the Effective Date, and
the Prospectus at its date of issue and any amendments or
supplements thereto contains or will contain, as the case
may be, all statements which are required to be stated
therein by, and in all material respects conform or will
conform, as the case may be, to the requirements of, the Act
and the Rules and Regulations. Neither the Registration
Statement nor any amendment thereto, as of the applicable
effective date, and neither the Prospectus nor any
supplement thereto, as of its applicable issue date or the
Closing Date, contains or will contain, as the case may be,
any untrue statement of a material fact or omits or will
omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no
representation or warranty as to information contained in or
omitted from the Registration Statement or the Prospectus,
or any such amendment or supplement, in reliance upon, and
in conforming with, written information furnished to the
Company by you specifically for use in the preparation
thereof.
(iii) The documents incorporated by reference in the
Prospectus pursuant to Item 12 of Form S-3 under the Act, at
the time they were filed with the Commission, complied in
all material respects with the requirements of the Exchange
Act, and the rules and regulations adopted by the Commission
thereunder (the "1934 Act Rules and Regulations"), and, when
read together and with the other information in the
Prospectus, at the time the Registration Statement became
effective and at the Closing Date, did not or will not, as
the case may be, 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.
(iv) The filing of the Registration Statement and the
execution and delivery of this Agreement have been duly
authorized by the Board of Directors of the Company; this
Agreement constitutes a valid and legally binding obligation
of each of the Transaction Entities enforceable in
accordance with its terms (except to the extent the
enforceability of the indemnification and contribution
provisions of Section 6 hereof may be limited by public
policy considerations as expressed in the Act as construed
by courts of competent jurisdiction, and except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws affecting
creditors' rights generally and by general principles of
equity); the issue and sale of the Shares by the Company and
the performance of this Agreement and the consummation of
the transactions herein contemplated will not result in a
violation of any of the Transaction Entities articles of
incorporation or bylaws, partnership agreement or other
organizational documents, or result in a breach or violation
of any of the terms and provisions of, or constitute a
default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any properties or
assets of the Transaction Entities or their subsidiaries
under, any statute, or under any indenture, mortgage, deed
of trust, note, loan agreement, sale and leaseback
arrangement or other agreement or instrument to which the
Transaction Entities or any of their subsidiaries is a party
or by which they are bound or to which any of the properties
or assets of the Transaction Entities or their subsidiaries
is subject, or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the
Transaction Entities or their subsidiaries or their
properties, except to such extent as does not materially
adversely affect the business of the Transaction Entities
and their subsidiaries taken as a whole; no consent,
approval, authorization, order, registration or
qualification of or with any court or governmental agency or
body is required for the consummation of the transactions
herein contemplated, except such as may be required by the
National Association of Securities Dealers, Inc. (the
"NASD") or under the Act or Rules and Regulations or any
state securities laws.
(v) No Transaction Entity nor any of their
subsidiaries has sustained since the date of the latest
audited financial statements included or incorporated by
reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action,
order or decree. 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 Transaction Entities and their subsidiaries taken as a
whole have not incurred any material liabilities or material
obligations, direct or contingent, other than in the
ordinary course of business, or entered into any material
transactions not in the ordinary course of business, and
there has not been any material change in the capital stock
or long-term debt of the Transaction Entities and their
subsidiaries taken as a whole or any material adverse change
in the condition (financial or other), net worth, business,
affairs, management, prospects or results of operations of
the Transaction Entities and their subsidiaries taken as a
whole. The Transaction Entities and their subsidiaries have
filed all necessary federal, state and foreign income and
franchise tax returns and paid all taxes shown as due
thereon; all tax liabilities are adequately provided for on
the books of the Transaction Entities and their subsidiaries
except to such extent as would not materially adversely
affect the business of the Transaction Entities and their
subsidiaries taken as a whole, the Transaction Entities and
their subsidiaries have made all necessary payroll tax
payments and are current and up-to-date as of the date of
this Agreement; and the Transaction Entities and their
subsidiaries have no knowledge of any tax proceeding or
action pending or threatened against the Transaction
Entities or their subsidiaries which might materially
adversely affect their business or property.
(vi) Except as described in the Prospectus, there is
not now pending or, to the knowledge of the Transaction
Entities, threatened or contemplated, any action, suit or
proceeding to which the Transaction Entities or their
subsidiaries is a party before or by any court or public,
regulatory or governmental agency or body which might be
expected to result (individually or in the aggregate) in any
material adverse change in the condition (financial or
other), business or prospects of the Transaction Entities
and their subsidiaries taken as a whole, or might be
expected to materially and adversely affect (individually or
in the aggregate) the properties or assets thereof, and
there are no contracts or documents of the Transaction
Entities or their subsidiaries which would be required to be
filed as exhibits to the Registration Statement by the Act
or by the Rules and Regulations which have not been filed as
exhibits to the Registration Statement or incorporated by
reference therein.
(vii) The Company has duly and validly authorized
capital stock as described in the Prospectus; all
outstanding shares of Common Stock of the Company and the
Shares conform, or when issued will conform, to the
description thereof in the Prospectus and have been, or,
when issued and paid for will be, duly authorized, validly
issued, fully paid and nonassessable; and the issuance of
the Shares to be purchased from the Company hereunder is not
subject to preemptive rights.
(viii) Each of the Transaction Entities and their
subsidiaries have been duly incorporated or formed, as the
case may be, and is a validly existing corporation, general
or limited partnership, or other legal entity, as the case
may be, in good standing under the laws of the state or
other jurisdiction in which it is incorporated or formed, as
the case may be. The Transaction Entities and their
subsidiaries have full power and authority (corporate and
other) to own, lease and operate their properties and
conduct their businesses as described in the Prospectus;
each of the Transaction Entities and their subsidiaries is
duly qualified or registered to do business and is in good
standing in each state or other jurisdiction in which its
ownership or leasing of property or conduct of business
legally requires such qualification, except where the
failure to be so qualified would not have a material adverse
effect on the ability of the Transaction Entities and their
subsidiaries to conduct their business as described in the
Prospectus; and the outstanding shares of capital stock or
ownership interests of the Transaction Entities and their
subsidiaries have been duly authorized and validly issued,
are fully paid and nonassessable and are owned by the
applicable Transaction Entity free and clear of any
mortgage, pledge, lien, encumbrance, charge or adverse claim
and are not the subject of any agreement or understanding
with any person; except for options pursuant to the
Company's 1994 Stock Option Plan and the Company's 1991
Directors Stock Option Plan, as amended, no options,
warrants or other rights to purchase, agreement or other
obligations to issue or other rights to convert any
obligations into shares of capital stock or ownership
interest in the subsidiaries are outstanding.
(ix) Ernst & Young LLP, the accounting firm which has
certified the financial statements filed with or
incorporated by reference in and as a part of the
Registration Statement, is an independent public accounting
firm within the meaning of the Act and the Rules and
Regulations.
(x) 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, shareholders'
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 Rules and Regulations
thereunder.
(xi) No Transaction Entity nor any subsidiary is in
default with respect to any contract or agreement to which
it is a party; provided that this representation shall not
apply to defaults which in the aggregate are not materially
adverse to the condition, financial or other, or the
business or prospects of the Transaction Entities and their
subsidiaries taken as a whole.
(xii) No Transaction Entity nor any subsidiary is in
violation of any other laws, ordinances or governmental
rules or regulations to which it is subject, including,
without limitation, Section 13 of the Exchange Act, and no
Transaction Entity nor any subsidiary has failed to obtain
any license, permit, franchise, easement, consent, or other
governmental authorization necessary to the ownership,
leasing and operation of its properties or to the conduct of
its business, which violation or failure would materially
adversely affect the business, operations, affairs,
properties, prospects, profits or condition (financial or
other) of the Transaction Entities and their subsidiaries
taken as a whole. No Transaction Entity nor any subsidiary
has, at any time during the past five years, (A) made any
unlawful contributions to any candidate for any political
office, or failed fully to disclose any contribution in
violation of law, or (B) made any payment to any state,
federal or foreign government official, or other person
charged with similar public or quasi-public duty (other than
payment required or permitted by applicable law).
(xiii) Except as set forth on Schedule I, there are no
holders of securities of the Company having rights to
registration thereof or preemptive rights to purchase Common
Stock of the Company except as disclosed in the Prospectus.
Holders of registration rights have waived such rights with
respect to the offering being made by the Prospectus.
(xiv) Except as described in the Prospectus, the
Transaction Entities and their subsidiaries own or possess,
or can acquire on reasonable terms, adequate patents, patent
licenses, trademarks, service marks and trade names
necessary to conduct the business now operated by them, and
no Transaction Entity nor any subsidiary has received any
notice of infringement of or conflict with asserted rights
of others with respect to any patents, patent licenses,
trademarks, service marks or trade names which, singly or in
the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a material adverse effect on
the conduct of the business, operations, financial condition
or income of the Transaction Entities and their subsidiaries
taken as a whole.
(xv) The Transaction Entities and each of their
subsidiaries has good and marketable title to all properties
and assets described in the Prospectus as owned by it, free
and clear of all liens, charges, encumbrances or
restrictions, except such as (i) are described in the
Prospectus or (ii) are not material to the business of the
Transaction Entities or their subsidiaries, taken as a
whole. The Transaction Entities and each of their
subsidiaries has valid, subsisting and enforceable leases
for the properties described in the Prospectus as leased by
it, with such exceptions as are not material and do not
materially interfere with the use made and proposed to be
made of such properties by the Transaction Entities and such
subsidiaries; no tenant under any of the leases pursuant to
which any of the Transaction Entities leases its 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 Transaction Entities complies
in all material respects with all applicable codes and
zoning laws and regulations; the Transaction Entities have
no knowledge of any pending or threatened condemnation or
zoning change that will in any material respect affect the
size of, use of, improvements of, construction on, or access
to any of the properties of the Transaction Entities; and
the Transaction Entities have no knowledge of any pending or
threatened proceeding or action that will in any manner
affect the size of, use of, improvements on, construction
on, or access to any of the properties of the Transaction
Entities.
(xvi) Title insurance in favor of the Transaction Entity
(or the subsidiary) which holds title to such property is
maintained with respect to each of the properties owned by
such Transaction Entity in an amount at least equal to the
greater of (i) the cost of acquisition of such property or
(ii) the cost of construction by the Transaction Entity of
the improvements located on such property (measured at the
time of such construction), except, in each case, where the
failure to maintain such title insurance would not have a
material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business
prospects of the Transaction Entities and their subsidiaries
taken as a whole. Title insurance in favor of the mortgagee
is maintained in an amount equal to the maximum commitment
of the related loan.
(xvii) (a) Except as disclosed in the Prospectus, the
Transaction Entities have no knowledge of (i) the presence
of any hazardous substances, hazardous materials, toxic
substances, pollutants or waste materials (collectively,
"Hazardous Materials") on any of the properties owned or
operated by the Transaction Entities and their subsidiaries
(the "Properties"), except that which is in compliance with
all Environmental Laws or (ii) any spills, releases, dis
charges or disposals of Hazardous Materials that have
occurred or are presently occurring on or from the
Properties, which presence or occurrence would individually
or in the aggregate have a material adverse effect on the
conduct of the business, operations, financial condition or
income of the Transaction Entities and their subsidiaries
taken as a whole.
(b) Except as disclosed in the Prospectus, the
Transaction Entities, their subsidiaries and their
Properties (i) are in compliance with any and all
Environmental Laws, (ii) have received all permits, licenses
or other approvals required under applicable Environmental
Laws to conduct its business and (iii) are in compliance
with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental
Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals would not
individually or in the aggregate have a material adverse
effect on the conduct of the business, operations, financial
condition or income of the Transaction Entities and their
subsidiaries taken as a whole.
(c) The Transaction Entities engage environmental
consultants to perform phase I environmental site
assessments in accordance with the ASTM Standard to identify
any environmental conditions prior to the purchase of their
properties. On the basis of such phase I environmental site
assessments, or such additional investigations as may have
been performed based on the findings of a phase I
assessment, and, except as described in the Prospectus, the
Transaction Entities and their subsidiaries have reasonably
concluded that no such environmental conditions exist which
would, individually or in the aggregate, have a material
adverse effect on the conduct of the business, operations,
financial condition or income of the Transaction Entities
and their subsidiaries taken as a whole.
(d) As used herein, "Hazardous Material" shall
include, without limitation any flammable explosives,
radioactive materials, hazardous materials, hazardous
wastes, hazardous or toxic substances, or related materials,
asbestos, polychlorinated biphenyls ("PCBs"), petroleum
products and by-products and substances defined or listed as
"hazardous substances," "toxic substances, "hazardous
waste," or "hazardous materials" in any Federal, state or
local Environmental Law.
(e) As used herein, "Environmental Law" shall mean all
laws, regulations or ordinances of any Federal, state or
local governmental authority having or claiming jurisdiction
over any of the Properties (a "Governmental Authority") that
are designed to protect public health and the environment or
regulate the handling of Hazardous Materials, including,
without limitation, the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as
amended (42 U.S.C. Section 9601 et seq.) ("CERCLA"), the
Hazardous Material Transportation Act, as amended (49 U.S.C.
Section 1801 et seq.), the Resource Conservation and
Recovery Act, as amended (42 U.S.C. Section 6901 et seq.),
the Federal Water Pollution Control Act, as amended (33
U.S.C. Section 1251 et seq.), and the Clean Air Act, as
amended (42 U.S.C. Section 7401 et seq.), and any and all
analogous future federal or present or future state or local
laws.
(xviii) No labor disturbance exists with the employees of
the Transaction Entities or their subsidiaries or is
imminent which would have a material adverse effect on the
Transaction Entities and their subsidiaries taken as a
whole.
(xix) The Company has not taken and will not take,
directly or indirectly, any action designed to or which
might reasonably be expected to cause or result in
stabilization or manipulation of the price of the Common
Stock, and the Company is not aware of any such action taken
or to be taken by affiliates of the Company.
(xx) The Company is not an "investment company" or a
company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(xxi) The mortgages and deeds of trust encumbering the
properties and assets described in the Prospectus are not
convertible nor does any Transaction Entity hold a
participating interest therein.
(xxii) Property and casualty insurance in favor of the
Company is maintained with respect to each of the properties
owned by the Transaction Entities in an amount and on such
terms as is reasonable and customary for businesses of this
type.
(xxiii) The Company has continuously been organized and
operated in conformity with the requirements for
qualification as a real estate investment trust under the
Internal Revenue Code of 1986, as amended (the "Code") for
all taxable years commencing with its taxable year ended
December 31, 1997. The Company will file an election to be
taxed as a real estate investment trust for the year ended
December 31, 1997. 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
Company intends to continue to operate in a manner which
would permit it to qualify as a real estate investment trust
under the Code.
(xxiv) Except as disclosed in the Prospectus, each entity
identified in the Prospectus as a tenant of any property, or
a subtenant thereof, has entered into a lease or a sublease,
if applicable, for the possession of such property; except
as disclosed in the Prospectus, each such lease is in full
force and effect and no Transaction Entity nor any of its
subsidiaries has notice of any defense to the obligations of
the tenant thereunder or any claim asserted or threatened by
any person or entity, which claim, if sustained, would have
a material adverse effect on the conduct of the business,
operations, financial condition or income of the Transaction
Entities or their subsidiaries taken as a whole; and except
as disclosed in the Prospectus, the lessor under each lease
has complied with its obligations under such lease in all
material respects and no Transaction Entity nor any of its
subsidiaries has notice of any default by the tenant under
such lease which, individually or in the aggregate with
other such defaults, would have a material adverse effect on
the conduct of the business, operations, financial condition
or income of the Transaction Entities or their subsidiaries
taken as a whole.
(xxv) Any certificate signed by any officer of the
Company and delivered to you or to your counsel shall be
deemed a representation and warranty by the Company to you
as to the matters covered thereby.
(xxvi) A registration statement relating to the Common
Stock of the Company has been declared effective by the
Commission pursuant to the Exchange Act and the Common Stock
of the Company is duly registered thereunder. The Shares
have been listed on the New York Stock Exchange, subject to
notice of issuance or sale of the Shares, as the case may
be.
4. Additional Covenants. The Company covenants and agrees
with you that:
(a) The Company will (i) prepare a Prospectus
Supplement setting forth the number of Shares covered
thereby and their terms not otherwise specified in the
Prospectus pursuant to which the Shares are being issued,
the name of the Underwriter and the number of Shares which
the Underwriter has agreed to purchase, the price at which
the Shares are to be purchased by the Underwriter from the
Company and such other information as the Underwriter and
the Company deem appropriate in connection with the offering
of the Shares, and file the Prospectus in a form approved by
you pursuant to Rule 424(b) under the Act no later than the
Commission's close of business on the second business day
following the date of the determination of the offering
price of the Shares; (ii) not file any amendment to the
Registration Statement or supplement to the Prospectus of
which you shall not previously have been advised and
furnished with a copy or to which you shall have reasonably
objected in writing or which is not in compliance with the
Rules and Regulations; and (iii) promptly notify you after
it shall have received notice thereof of the time when any
amendment to the Registration Statement becomes effective or
when any supplement to the Prospectus has been filed.
(b) The Company will advise you promptly, after it
shall receive notice or obtain knowledge thereof, of any
request of the Commission for amendment of the Registration
Statement or for supplement to the Prospectus or for any
additional information, or of the issuance by the Commission
of any stop order suspending the effectiveness of the
Registration Statement or the use of the Prospectus or of
the institution or threatening of any proceedings for that
purpose, and the Company will use its best efforts to
prevent the issuance of any such stop order preventing or
suspending the use of the Prospectus and to obtain as soon
as possible the lifting thereof, if issued.
(c) The Company will cooperate with you and your
counsel in endeavoring to qualify the Shares for sale under
the securities laws of such jurisdictions as they may have
designated and will make such applications, file such
documents, and furnish such information as may be necessary
for that purpose, provided the Company shall not be required
to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction where it
is not now so qualified or required to file such a consent
or to subject itself to taxation as doing business in any
jurisdiction where it is not now so taxed. The Company
will, from time to time, file such statements, reports, and
other documents, as are or may be required to continue such
qualifications in effect for so long a period as you may
reasonably request.
(d) The Company will deliver to you, without charge as
many copies of the Prospectus (including all documents
incorporated by reference therein), or as it thereafter may
be amended or supplemented, as you may from time to time
reasonably request. The Company consents to the use of such
Prospectus by you, both in connection with the offering or
sale of the Shares and for such other purposes and for such
period of time thereafter as the Prospectus is required by
law to be delivered in connection with the offering or sale
of the Shares. The Company will deliver to you at or before
the Closing Date two conformed copies of the Registration
Statement and all amendments thereto including all exhibits
filed therewith or incorporated by reference therein and all
documents incorporated by reference in the Prospectus and
will deliver to you such number of copies of the
Registration Statement, without exhibits, and of all
amendments thereto, as you may reasonably request.
(e) If, during the period in which a prospectus is
required by law to be delivered by an underwriter or dealer,
any event shall occur as a result of which, in the judgment
of the Company or in your judgment or in the opinion of your
counsel, it becomes necessary to amend or supplement the
Prospectus in order to make the statements therein, in light
of the circumstances existing at the time the Prospectus is
delivered to a purchaser, not misleading, or, if it is
necessary at any time to amend or supplement the Prospectus
to comply with any law, the Company promptly will prepare
and file with the Commission an appropriate amendment to the
Registration Statement or supplement to the Prospectus so
that the Prospectus as so amended or supplemented will not,
in the light of the circumstances when it is so delivered,
be misleading, or so that the Prospectus will comply with
law.
(f) The Company will make generally available to its
shareholders and will file as an exhibit in a report
pursuant to the Exchange Act, as soon as it is practicable
to do so, but in any event not later than 15 months after
the effective date of the Registration Statement, an
earnings statement in reasonable detail, covering a period
of at least 12 consecutive months beginning after the
effective date of the Registration Statement, which earnings
statement shall satisfy the requirements of Section 11(a) of
the Act and Rule 158 of the Rules and Regulations and will
advise you in writing when such statement has been so made
available.
(g) The Company will, for a period of one year from
the Closing Date, deliver to you at your principal executive
offices a reasonable number of copies of annual reports,
quarterly reports, current reports and copies of all other
documents, reports and information furnished by the Company
to its shareholders or filed with any securities exchange
pursuant to the requirements of such exchange or with the
Commission pursuant to the Act or the Exchange Act. The
Company will deliver to you similar reports with respect to
any significant subsidiaries, as that term is defined in the
Rules and Regulations, which are not consolidated in the
Company financial statements. Any report, document or other
information required to be furnished under this paragraph
(g) shall be furnished as soon as practicable after such
report, document or information becomes available.
(h) The Company will apply the proceeds from the sale
of the Shares as set forth in the description under "Use of
Proceeds" in the Prospectus, which description complies in
all respects with the requirements of Item 504 of Regulation
S-K.
(i) The Company will supply you with copies of all
correspondence to and from, and all documents issued to and
by, the Commission in connection with the registration of
the Shares under the Act.
(j) Prior to the Closing Date, the Company will
furnish to you, as soon as they have been prepared, copies
of any unaudited interim consolidated financial statements
of the Company and its subsidiaries for any periods
subsequent to the periods covered by the financial
statements appearing in the Registration Statement and the
Prospectus.
(k) Prior to the Closing Date, the Company will not
issue any press releases or other communications directly or
indirectly and will hold no press conference, with respect
to the Company or any of its subsidiaries, the financial
condition, results of operations, business, properties,
assets or liabilities of the Company or any of its
subsidiaries, or the offering of the Shares, without your
prior written consent.
(l) The Company will use its best efforts to obtain
approval for, and maintain the listing of the Shares on, the
New York Stock Exchange.
(m) The Company and its subsidiaries will maintain and
keep accurate books and records reflecting their assets and
maintain internal accounting controls which provide
reasonable assurance that (1) transactions are executed in
accordance with management's authorization, (2) transactions
are recorded as necessary to permit the preparation of the
Company's consolidated financial statements and to maintain
accountability for the assets of the Company and its
subsidiaries, (3) access to the assets of the Company and
its subsidiaries is permitted only in accordance with
management's authorization, and (4) the recorded accounts of
the assets of the Company and its subsidiaries are compared
with existing assets at reasonable intervals.
(n) During any period in which a prospectus is
required by law to be delivered by an Underwriter or dealer,
the Company will promptly file all documents required to be
filed with the Commission pursuant to Sections 13, 14 or
15(d) of the Exchange Act.
(o) The Company will continue to elect 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 Underwriter's Obligation. Your
obligations, as Underwriter to purchase and pay for the Shares,
as provided herein, shall be subject to the accuracy in all
material respects, as of the date hereof and as of the Closing
Date, of the representations and warranties of the Transaction
Entities contained herein, to the performance in all material
respects by the Transaction Entities of their covenants and
obligations hereunder, and to the following additional
conditions:
(a) All filings required by Rule 424 of the Rules and
egulations shall have been made. No stop order suspending
the effectiveness of the Registration Statement, as amended
from time to time, shall have been issued and no proceeding
for that purpose shall have been initiated or, to your
knowledge or the knowledge of the Company, threatened or
contemplated by the Commission, 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 to your reasonable satisfaction.
(b) You shall not have disclosed in writing to the
Company on or prior to the Closing Date, that the
Registration Statement or Prospectus or any amendment or
supplement thereto contains an untrue statement of fact
which, in the opinion of your counsel, is material, or omits
to state a fact which, in the opinion of such counsel, is
material and is required to be stated therein or is
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(c) On the Closing Date, you shall have received the
opinion of Jaeckle Fleischmann & Mugel, LLP, counsel for the
Company, and Piper & Marbury, L.L.P., special Maryland
counsel for the Company (as to which Jaeckle Fleischmann &
Mugel, LLP and Chapman and Cutler may rely on) addressed to
you and dated the Closing Date, as to the matters set forth
in Schedule II attached hereto.
(d) You shall have received on the Closing Date, from
Chapman and Cutler, your counsel, such opinion or opinions,
dated the Closing Date with respect to the incorporation of
the Company, the validity of the Shares, the Registration
Statement, the Prospectus and other related matters as you
may reasonably require; the Company shall have furnished to
such counsel such documents as they reasonably request for
the purpose of enabling them to pass on such matters.
(e) You shall have received at or prior to the Closing
Date from Chapman and Cutler a memorandum or memoranda, in
form and substance satisfactory to you, with respect to the
qualification for offering and sale by you of the Shares
under state securities or Blue Sky laws of such
jurisdictions as you may have designated to the Company.
(f) On the date of this Agreement and on the Closing
Date, you shall have received from Ernst & Young LLP, a
letter or letters, dated the date of this Agreement and the
Closing Date, respectively, in form and substance
satisfactory to you, confirming that they are independent
public accountants with respect to the Company within the
meaning of the Act and the published Rules and Regulations,
and stating to the effect set forth in Schedule III hereto.
(g) Except as contemplated in the Prospectus, (i) no
Transaction Entity nor any of its subsidiaries shall have
sustained since the date of the latest audited financial
statements included or incorporated by reference in the
Prospectus any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree; and (ii) subsequent to
the respective dates as of which information is given in the
Registration Statement and the Prospectus, no Transaction
Entity nor any of its subsidiaries shall have incurred any
liability or obligation, direct or contingent, or entered
into transactions, and there shall not have been any change
in the capital stock or long-term debt of the Company and
its subsidiaries or any change in the condition (financial
or other), net worth, business, affairs, management,
prospects or results of operations of the Transaction
Entities or their subsidiaries, the effect of which, in any
such case described in clause (i) or (ii), is in your
judgment so material or adverse as to make it impracticable
or inadvisable to proceed with the public offering or the
delivery of the Shares being delivered on the Closing Date
on the terms and in the manner contemplated in the
Prospectus.
(h) There shall not have occurred any of the
following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock
Exchange or the American Stock Exchange or the establishing
on such exchanges by the Commission or by such exchanges of
minimum or maximum prices which are not in force and effect
on the date hereof; (ii) a general moratorium on commercial
banking activities declared by either federal or state
authorities; (iii) the outbreak or escalation of hostilities
involving the United States or the declaration by the United
States of a national emergency or war, if the effect of any
such event specified in this clause (iii) in your judgment
makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares in the manner
contemplated in the Prospectus; (iv) any calamity or crisis,
change in national, international or world affairs, act of
God, change in the international or domestic markets, or
change in the existing financial, political or economic
conditions in the United States or elsewhere, if the effect
of any such event specified in this clause (iv) makes it
impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares in the manner
contemplated in the Prospectus; or (v) the enactment,
publication, decree, or other promulgation of any federal or
state statute, regulation, rule, or order of any court or
other governmental authority, or the taking of any action by
any federal, state or local government or agency in respect
of fiscal or monetary affairs, if the effect of any such
event specified in this clause (v) in your judgment makes it
impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares in the manner
contemplated in the Prospectus.
(i) You shall have received certificates, dated the
Closing Date and signed by the President and the Chief
Executive Officer of the Company stating that (i) they have
carefully examined the Registration Statement and the
Prospectus as amended or supplemented and all documents
incorporated by reference therein and nothing has come to
their attention that would lead them to believe that either
the Registration Statement or the Prospectus, or any
amendment or supplement thereto or any documents
incorporated by reference therein as of their respective
effective, issue or filing dates, contained, and the
Prospectus as amended or supplemented and all documents
incorporated by reference therein and when read together
with the documents incorporated by reference therein, at the
Closing Date, contains any untrue statement of a material
fact, or omits to state a material fact required to be
stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading, and, that (ii) all representations and
warranties made herein by the Company are true and correct
in all material respects at the Closing Date, with the same
effect as if made on and as of the Closing Date, and all
agreements herein to be performed by the Company on or prior
to the Closing Date have been duly performed in all material
respects.
(j) The Company shall not have failed, refused, or
been unable, at or prior to the Closing Date to have
performed in all material respects any agreement on their
part to be performed or any of the conditions herein
contained and required to be performed or satisfied by them
at or prior to the Closing Date.
(k) The Company shall have furnished to you at the
Closing Date such other certificates as you may have
reasonably requested as to the accuracy, on and as of the
Closing Date, of the representations and warranties of the
Company herein and as to the performance by the Company of
their obligations hereunder.
(l) The Shares shall have been approved for trading
upon official notice of issuance on the New York Stock
Exchange.
All such opinions, certificates, letters and documents will
be in compliance with the provisions hereof only if they are
reasonably satisfactory to you and to Chapman and Cutler, your
counsel. The Company will furnish you with such conformed copies
of such opinions, certificates, letters and documents as you may
request.
If any of the conditions specified above in this Section 5
shall not have been satisfied at or prior to the Closing Date or
waived by you in writing, this Agreement may be terminated by you
on notice to the Company.
6. Indemnification. (a) The Transaction Entities jointly
and severally shall indemnify and hold you harmless and each
person, if any, who controls you within the meaning of the Act,
against any losses, claims, damages or liabilities, joint or
several, to which you or such controlling person may become
subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto, or in any blue sky application
or other document executed by the Company or based on any
information furnished in writing by the Company, filed in any
jurisdiction in order to qualify any or all of the Shares under
the securities laws thereof ("Blue Sky Application"), or arise
out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and
will reimburse you and each such controlling person for any legal
or other expenses reasonably incurred by you or such controlling
person in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that
the Transaction Entities shall not be liable in any such case to
the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in the
Registration Statement, such Preliminary Prospectus or the
Prospectus, or such amendment or supplement, or any Blue Sky
Application in reliance upon and in conformity with written
information furnished to the Company by you, specifically for use
in the preparation thereof; and provided, further, that if any
Preliminary Prospectus or the Prospectus contained any alleged
untrue statement or allegedly omitted to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading and such statement or omission
shall have been corrected in a revised Preliminary Prospectus or
in the Prospectus or in an amended or supplemented Prospectus,
the Transaction Entities shall not be liable to you or
controlling persons under this subsection (a) with respect to
such alleged untrue statement or alleged omission to the extent
that any such loss, claim, damage or liability of such person
results from the fact that you sold Shares to a person to whom
there was not sent or given, at or prior to the written
confirmation of such sale, such revised Preliminary Prospectus or
Prospectus or amended or supplemented Prospectus. In addition to
its other obligations under this Section 6(a), the Transaction
Entities agree that, as an interim measure during the pendency of
any claim, action, investigation, inquiry or other proceeding
arising out of or based upon any statement or omission, or any
alleged statement or omission, described in this Section 6(a),
the Transaction Entities will reimburse you on a monthly basis
for all reasonable legal and other expenses incurred in
connection with investigating or defending any such claim,
action, investigation, inquiry or other proceeding, notwith
standing the absence of a judicial determination as to the
propriety and enforceability of the Transaction Entities'
obligation to reimburse you for such expenses and the possibility
that such payments might later be held to have been improper by a
court of competent jurisdiction. This indemnity agreement shall
be in addition to any liabilities which the Transaction Entities
may otherwise have.
(b) You will indemnify and hold harmless the Transaction
Entities, each of their directors, each of their officers who
have signed the Registration Statement and each person, if any,
who controls the Company within the meaning of the Act, against
any losses, claims, damages or liabilities, joint or several, to
which the Transaction Entities or any such director, officer or
controlling person may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus, any amendment or supplement thereto,
or any Blue Sky Application or arise out of or are based upon the
omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in the Registration
Statement, such Preliminary Prospectus or the Prospectus, such
amendment or supplement, or any Blue Sky Application in reliance
upon and in conformity with written information furnished to the
Company by you specifically for use in the preparation thereof;
and will reimburse any legal or other expenses reasonably
incurred by the Transaction Entities or any such director,
officer or controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action. In
addition to your other obligations under this Section 6(b), you
agree that, as an interim measure during the pendency of any
claim, action, investigation, inquiry or other proceeding arising
out of or based upon any statement or omission, or any alleged
statement or omission, described in this Section 6(b), you will
reimburse the Transaction Entities on a monthly basis for all
reasonable legal and other expenses incurred in connection with
investigating or defending any such claim, action, investigation,
inquiry or other proceeding, notwithstanding the absence of a
judicial determination as to the propriety and enforceability of
your obligation to reimburse the Company for such expenses and
the possibility that such payments might later be held to have
been improper by a court of competent jurisdiction. This
indemnity agreement shall be in addition to any liabilities which
you may otherwise have.
(c) Any party which proposes to assert the right to be
indemnified under this Section 6 shall, within ten days after
receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim is to
be made against an indemnifying party under this Section 6,
notify each such indemnifying party of the commencement of such
action, suit or proceeding, enclosing a copy of all papers
served, but the omission so to notify such indemnifying party of
any such action, suit or proceeding shall not relieve such
indemnifying party from any liability which it may have to any
indemnified party otherwise than under this Section 6. In case
any such action, suit or proceeding shall be brought against any
indemnified party and it shall notify the indemnifying party of
the commencement thereof, the indemnifying party shall be
entitled to participate in, and, to the extent that it shall
wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party shall not
be liable to such indemnified party for any legal or other
expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection
with the defense thereof. The indemnified party shall have the
right to employ its own counsel in any such action, but the fees
and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment of counsel by such
indemnified party at the expense of the indemnifying party has
been authorized by the indemnifying party, (ii) the indemnified
party shall have been advised by such counsel in a written
opinion that there may be a conflict of interest between the
indemnifying party and the indemnified party in the conduct of
the defense, or certain aspects of the defense, of such action
(in which case the indemnifying party shall not have the right to
direct the defense of such action with respect to those matters
or aspects of the defense on which a conflict exists or may exist
on behalf of the indemnified party) or (iii) the indemnifying
party shall not in fact have employed counsel to assume the
defense of such action, in any of which events such fees and
expenses to the extent applicable shall be borne by the
indemnifying party. An indemnifying party shall not be liable
for any settlement of any action or claim effected without its
consent. Each indemnified party, as a condition of such
indemnity, shall cooperate in good faith with the indemnifying
party in the defense of any such action or claim.
(d) If the indemnification provided for in this Section 6
is for any reason, other than pursuant to the terms thereof,
judicially determined (by the entry of a final judgment or decree
by a court of competent jurisdiction and the expiration of time
to appeal or the denial of the last right to appeal) to be
unavailable to an indemnified party under subsections (a) or (b)
above in respect of any losses, claims, damages or liabilities
(or actions in respect thereof) referred to therein, then each
indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits
received by the Transaction Entities and you from the offering of
the Shares. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable
law, then each indemnifying party shall contribute to such amount
paid or payable by such indemnified party in such proportion as
is appropriate to reflect not only such relative benefits but
also the relative fault, as applicable, of the Transaction
Entities and you in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as other relevant equitable
considerations. The relative benefits received by, as
applicable, the Transaction Entities and you shall be deemed to
be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Transaction
Entities bear to the total underwriting discounts and commissions
received by you, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied
by the Transaction Entities or you and the parties' relative
intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Transaction
Entities and you agree that it would not be just and equitable if
contributions pursuant to this subsection (d) were determined by
pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to
above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in
this subsection (d) shall be deemed to include 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 subsection (d),
you shall not be required to contribute any amount in excess of
the underwriting discounts and commissions applicable to the
Shares purchased by you. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
7. Representations and Agreements to Survive Delivery.
All representations, warranties, and agreements of the
Transaction Entities contained herein or in certificates
delivered pursuant hereto, and your agreements contained in
Section 6 hereof, shall remain operative and in full force and
effect regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of you or any
controlling person, the Transaction Entities or any of its
officers, directors or any controlling persons, and shall survive
delivery of the Shares to you hereunder.
8. Effective Date and Termination. (a) This Agreement
shall become effective upon execution.
(b) This Agreement may be terminated by you at any time at
or prior to the Closing Date by notice to the Transaction
Entities if any condition specified in Section 5 hereof shall not
have been satisfied on or prior to the Closing Date. Any such
termination shall be without liability of any party to any other
party except as provided in Sections 6 and 9 hereof.
If you terminate this Agreement as provided in Sections
8(b), you shall notify the Company by telephone or telegram,
confirmed by letter.
9. Cost and Expenses. The Company will bear and pay the
costs and expenses incident to the registration of the Shares and
public offering thereof, including, without limitation, (a) the
fees and expenses of the Company's accountants and the fees and
expenses of counsel for the Company, (b) the preparation,
printing, filing, delivery and shipping of the Registration
Statement, each Preliminary Prospectus, the Prospectus, and any
amendments or supplements thereto (c) the furnishing of copies of
such documents to you, (d) the registration or qualification of
the Shares for offering and sale under the securities laws of the
various states, including the reasonable fees and disbursements
of your counsel relating to such registration or qualification,
(e) the fees payable to the NASD (if any) and the Commission in
connection with their review of the proposed offering of the
Shares, (f) all printing and engraving costs related to
preparation of the certificates for the Shares, including
transfer agent and registrar fees, (g) all initial transfer
taxes, if any, (h) all fees and expenses relating to the
authorization of the Shares for trading on the New York Stock
Exchange, (i) all travel expenses, including air fare and
accommodation expenses, of representatives of the Company in
connection with the offering of the Shares and (j) all of the
other costs and expenses incident to the performance by the
Company of the registration and offering of the Shares; provided,
however, that you will bear and pay the fees and expenses of your
counsel (other than fees and disbursements relating to the
registration or qualification of the Shares for offering and sale
under the securities laws of the various states), your out-of-
pocket expenses, and any advertising costs and expenses incurred
by you incident to the public offering of the Shares.
If this Agreement is terminated by you in accordance with
the provisions of Section 8(b), the Company shall reimburse you
for all of your out-of-pocket expenses, including the reasonable
fees and disbursements of your counsel.
10. Notices. All notices or communications hereunder,
except as herein otherwise specifically provided, shall be in
writing and if sent to you shall be mailed, delivered, sent by
facsimile transmission, or telegraphed and confirmed c/o A.G.
Edwards & Sons, Inc. at One North Jefferson Avenue, St. Louis,
Missouri 63103, Attention: Syndicate, facsimile number (314) 289-
7387, or if sent to the Transaction Entities shall be mailed,
delivered, sent by facsimile transmission, or telegraphed and
confirmed to the Company at One Jackson Place, Suite 1000, 188
East Capitol Street, Jackson, Mississippi 39201, Attention:
Steven G. Rogers, facsimile number (601) 949-4077.
11. Parties. This Agreement shall inure to the benefit of
and be binding upon you and the Company and their respective
successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person,
corporation or other entity, other than the parties hereto and
their respective successors and assigns and the controlling
persons, officers and directors referred to in Section 6, any
legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained; this Agreement
and all conditions and provisions hereof being intended to be and
being for the sole and exclusive benefit of the parties hereto
and their respective successors and assigns and said controlling
persons and said officers and directors, and for the benefit of
no other person, corporation or other entity. No purchaser of
any of the Shares from you shall be construed a successor or
assign by reason merely of such purchase.
12. Counterparts. This Agreement may be executed by any
one or more of the parties hereto in any number of counterparts,
each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same
instrument.
13. Pronouns. Whenever a pronoun of any gender or number
is used herein, it shall, where appropriate, be deemed to include
any other gender and number.
14. Applicable Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of
Missouri.
If the foregoing is in accordance with your understanding,
please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement
between the Company, the Operating Partnership and you.
PARKWAY PROPERTIES, INC.
By:_________________________
Name:_______________________
Title:______________________
PARKWAY PROPERTIES LP
By: Parkway Properties
General Partner, Inc.
By:_________________________
Title:______________________
Accepted in St. Louis,
Missouri as of the date
first above written.
A.G. EDWARDS & SONS, INC.
By:________________________
Name:______________________
Title:______________________
SCHEDULE I
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
SCHEDULE II
OPINION OF JAECKLE FLEISCHMANN & MUGEL, LLP
(i) Each Transaction Entity 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 Transaction Entities and their
subsidiaries taken as a whole;
(ii) The Company has authorized and issued capital
stock as set forth in its [Current Report on Form 8-K dated
February 17, 1998] [Quarterly Report on Form 10-Q for the
quarter ended September 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 Shares 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 I 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 Shares 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
Shares 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 this Underwriting Agreement, 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 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; The information in
the Prospectus under "Description of Common Stock" and
"Federal Income Tax Considerations", to the extent it
constitutes matters of law, summaries of legal matters, the
Company's charter and by-laws, legal proceedings or legal
conclusions, has been reviewed by us and is correct in all
material respects;
(vi) This Underwriting Agreement has been duly
authorized, executed and delivered by each Transaction
Entity; 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 Transaction
Entities or their subsidiaries are a party or by which they
are bound or to which any of the property or other assets of
the Transaction Entities or their subsidiaries is subject,
(b) the articles of incorporation, by-laws, certificate of
general or limited partnership, partnership agreement, or
other organizational document of the Transaction Entities or
any of their 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
Transaction Entities or their 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 Shares 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;
(viii) To the best of such counsel's knowledge, no
Transaction Entity nor any of its subsidiaries is in
violation of any term or provision of their respective
articles of incorporation, bylaws, 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;
(ix) 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 Transaction
Entities or any of their subsidiaries, involving the
Transaction Entities or any of their subsidiaries' officers
or directors or to which any of the Transaction Entities or
any of their subsidiaries' properties or other assets is
subject which would have a material effect upon the assets
or properties, business, results of operations, prospects or
condition (financial or otherwise) of the Transaction
Entities and their subsidiaries taken as a whole; and
(x) Neither the Company nor any of its subsidiaries is
an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
OPINION OF PIPER & MARBURY L.L.P.
(i) The Company has been duly incorporated and is
validly existing in good standing under the laws of the
State of Maryland, with full power, corporate or other, and
authority to conduct its business as described in its
Charter.
(ii) All the shares of Common Stock outstanding prior
to the issuance of the Shares have been duly authorized and
validly issued, are fully paid and nonassessable, and have
not been issued in violation of any preemptive or similar
right contained in the Company's Charter.
(iii) The Shares have been duly authorized and when
issued and delivered to the Underwriter against payment
therefor in accordance with the terms of the Underwriting
Agreement, will be duly and validly issued, fully paid and
nonassessable and free of any preemptive or, to our
knowledge, similar rights contained in the Company's Charter
that entitle or will entitle any person to acquire any of
the Shares upon the issuance thereof by the Company.
(iv) The issued and outstanding Common Stock of the
Company and the Shares conform, or will conform, in all
material respects as to legal matters to the description
thereof contained in the Prospectus under the caption
"Description of Common Stock."
(v) The form of certificates for the Shares conforms
to the requirements of the Maryland General Corporation Law.
(vi) The statements in the Prospectus under the caption
"Description of Common Stock," insofar as such statements
constitute summaries of the legal matters, documents, or
proceedings referred to therein, are accurate and fair in
all material respects.
(vii) The Company has corporate power and authority to
enter into the Underwriting Agreement and to issue, sell,
and deliver the Shares to the Underwriter as provided in the
Underwriting Agreement. The Underwriting Agreement has been
duly authorized and, assuming it has been executed and
delivered by the appropriate officer or officers of the
Company, duly executed and delivered by the Company.
(viii) Neither the issuance and sale of the Shares by the
Company, the execution, delivery, or performance of the
Underwriting Agreement by the Company nor the consummation
by the Company of the transactions contemplated thereby will
result in a breach or violation of the terms and provisions
of, or constitute a default under, (a) any Maryland statute,
or (b) the Charter or By-Laws of the Company.
(ix) To our knowledge, the Company is not in material
violation of its Charter or By-Laws.
SCHEDULE III
Pursuant to Section 5(f) of the Underwriting Agreement,
Ernst & Young LLP shall furnish letters to you to the effect
that:
(i) They are independent certified public accountants
with respect to the Company and its subsidiaries within the
meaning of the Act and the applicable Rules and Regulations
thereunder.
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited
(and, if applicable, prospective financial statements and/or
pro forma financial information examined) by them and
included or incorporated by reference in the Prospectus or
the Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the
Act and the applicable Rules and Regulations with respect to
registration statements on Form S-3; and, if applicable,
they have made a review in accordance with standards
established by the American Institute of Certified Public
Accountants of the unaudited consolidated interim financial
statements, selected financial data, pro forma financial
information, prospective financial statements and/or
condensed financial statements derived from audited
financial statements of the Company for the periods
specified in such letter, as indicated in their reports
thereon, copies of which have been furnished to you.
(iii) On the basis of limited procedures, not
constituting an audit in accordance with generally accepted
auditing standards, consisting of a reading of the unaudited
financial statements and other information referred to
below, performing the procedures specified by the AICPA for
a review of interim financial information as discussed in
SAS No. 71, Interim Financial Information, on the latest
available interim financial statements of the Company and
its subsidiaries, inspection of the minute books of the
Company and its subsidiaries since the date of the latest
audited financial statements included in the Prospectus,
inquiries of officials of the Company and its subsidiaries
responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such
letter, nothing came to their attention that caused them to
believe that:
(A) any material modifications should be made to
the unaudited statements of consolidated income,
statements of consolidated financial position and
statements of consolidated cash flows included in the
Prospectus for them to be in conformity with generally
accepted accounting principles, or the unaudited
statements of consolidated income, statements of
consolidated financial position and statements of
consolidated cash flows included in the Prospectus do
not comply as to form in all material respects with the
applicable accounting requirements of the Act and the
related published Rules and Regulations thereunder.
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not
agree with the corresponding items in the unaudited
consolidated financial statements from which such data
and items were derived, and any such unaudited data and
items were not determined on a basis substantially
consistent with the basis for the corresponding amounts
in the audited consolidated financial statements
included in the Prospectus.
(C) the unaudited financial statements which were
not included in the Prospectus but from which were
derived any unaudited condensed financial statements
referred to in Clause (A) and any unaudited income
statement data and balance sheet items included in the
Prospectus and referred to in Clause (B) were not
determined on a basis substantially consistent with the
basis for the audited consolidated financial statements
included in the Prospectus.
(D) any unaudited pro forma consolidated
condensed financial statements included in the
Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of
the Act and the published rules and regulations
thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the
compilation of those statements.
(E) as of a specified date not more than five
days prior to the date of such letter, there have been
any changes in the consolidated capital stock or any
increase in the consolidated long-term debt of the
Company and its subsidiaries, or any decreases in
consolidated working capital, net current assets or net
assets, or any changes in any other items specified by
you, in each case as compared with amounts shown in the
latest balance sheet included in the Prospectus, except
in each case for changes, increases or decreases which
the Prospectus discloses have occurred or may occur or
which are described in such letter.
(F) for the period from the date of the latest
financial statements included in the Prospectus to the
specified date referred to in Clause (E) there were any
decreases in consolidated net revenues or operating
profit or the total or per share amounts of
consolidated net income or any changes in any other
items specified by you, in each case as compared with
the comparable period of the preceding year and with
any other period of corresponding length specified by
you, except in each case for changes, decreases or
increases which the Prospectus discloses have occurred
or may occur or which are described in such letter.
(iv) In addition to the audit referred to in their
report(s) included or incorporated by reference in the
Prospectus and the limited procedures, inspection of minute
books, inquiries and other procedures referred to in
paragraph (iii) above, they have carried out certain
specified procedures, not constituting an audit in
accordance with generally accepted auditing standards, with
respect to certain amounts, percentages and financial
information specified by you, which are derived from the
general accounting records of the Company and its
subsidiaries for the periods covered by their reports and
any interim or other periods since the latest period covered
by their reports, which appear in the Prospectus, or in Part
II of, or in exhibits and schedules to, the Registration
Statement specified by you, and have compared certain of
such amounts, percentages and financial information with the
accounting records of the Company and its subsidiaries and
have found them to be in agreement.
_______________________________
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