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): March 5, 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 March 5, 1998, Parkway Properties, Inc. priced the sale of
855,900 shares of its Common Stock under its existing shelf
registration statement at a purchase price of $32.1875 per share
to institutional investors. All of the net proceeds of the
placement (approximately $26.9 million net of commissions and
expenses) will be used for the repayment of outstanding variable
rate indebtedness. PaineWebber Incorporated served as the sole
placement agent for the placement.
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
(1) Placement Agreement between PaineWebber
Incorporated, Parkway Properties, Inc. and Parkway
Properties LP dated March 5, 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: March 5, 1998 PARKWAY PROPERTIES, INC.
BY: /s/Sarah P. Clark
Sarah P. Clark
Senior Vice President,
Chief Financial Officer,
Treasurer and Secretary
855,900 Shares
PARKWAY PROPERTIES, INC.
Common Stock
($0.001 Par Value)
PLACEMENT AGREEMENT
March 5, 1998
PAINEWEBBER INCORPORATED
as placement agent,
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") and Parkway Properties LP, a Delaware partnership (the
"Operating Partnership"), confirm their agreement with
PaineWebber Incorporated ("PaineWebber"), as placement agent for
the Company in connection with the sale of the Securities (as
defined herein) on or about March 5, 1998. The Company has
agreed to pay PaineWebber a finder's fee (the "Finder's Fee") of
2% of the purchase price paid by Purchasers as listed on Schedule
A hereto. The Purchasers shall purchase the Securities for a
purchase price of $32.1875 per share of Common Stock (as defined
herein). The Finder's Fee shall be paid by the Company to
PaineWebber at the "Closing" by wire transfer or by other means
mutually agreed upon. The "Closing" shall mean the settlement
date on which the Purchasers pay to the Company the purchase
price by wire transfer (or otherwise) for the Securities.
PaineWebber and the Company hereby confirm that
PaineWebber's sole obligation with respect to the transaction
described herein is the introduction of the Purchasers to the
Company. Without limiting the foregoing, the Company
specifically acknowledges that PaineWebber is not an underwriter
in this transaction.
1. Description of Securities. The Company proposes
to issue and sell to the Purchasers, severally and not jointly,
855,900 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 and the Operating Partnership represent and warrant
to PaineWebber and for the benefit of the Purchasers that:
(i) Registration statements on Form S-3
(File No. 333-16479), 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 Placement
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 Placement Agreement (including one fully
executed copy of the registration statement and of each
amendment thereto for PaineWebber and its counsel) have been
delivered to PaineWebber and its 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 Placement 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 PaineWebber 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), conformed 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, did 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 PaineWebber that was furnished to the Company by
PaineWebber 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, duly authorized by the Company for issuance
and sale to the Purchasers; and when issued and delivered by
the Company to the Purchasers against payment of the
consideration therefor specified in this Placement
Agreement, 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
contingent; 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 Placement
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 Placement Agreement has been
duly authorized, executed and delivered by the Company and
the Operating Partnership.
(xv) The execution and performance of
this Placement 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 Placement 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 Placement 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 Placement 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.
(xvii) 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.
(xviii) 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 Purchasers, the number of Securities set
forth opposite that Purchaser's name in Schedule A hereto, at a
purchase price of $32.1875 per share (the "Purchase Price"). The
Company agrees to pay to PaineWebber on the Closing Date the
Finder's Fee with regard to all securities sold on the Closing
Date under this Placement Agreement.
The Securities to be purchased by the Purchasers will
be delivered by the Company to the address of each Purchaser as
set forth on Schedule A, in accordance with the terms of this
Placement 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 $ 27,549,281.25 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 Tuesday, March 10, 1998 (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 Purchasers and the Company
mutually agree, such time being herein referred to as the
"Closing Date." If requested by the Purchasers, the Securities
will be prepared in definitive form and in such authorized
denominations and registered in the names of the Purchasers at
least two business days' prior notice to the Company and will be
made available for checking and packaging at the Purchasers'
offices at least one business day prior to the Closing Date.
4. Covenants. The Company and the Operating
Partnership covenants with PaineWebber and for the benefit of the
Purchasers that:
(a) The Company will cause the Prospectus
Supplement to be filed as required by Section 2(a) hereof (but
only if PaineWebber or its 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
PaineWebber 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
PaineWebber 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 PaineWebber's request, any amendments
or supplements to the Registration Statement or Prospectus that,
in PaineWebber's opinion, may be necessary or advisable 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 Painewebber 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 Painewebber, 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 PaineWebber's
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 PaineWebber 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 PaineWebber
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 PaineWebber 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
PaineWebber 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 PaineWebber in writing when such
statement has been made available.
(g) Whether or not the transactions
contemplated by this Placement Agreement are consummated or this
Placement Agreement is terminated, the Company will pay, or
reimburse if paid by PaineWebber, all costs and expenses incident
to the performance of the obligations of the Company under this
Placement 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 Placement 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 to the Purchasers by
dealers to whom, (v) the listing of the Securities on the NYSE,
(vi) any filings required to be made by PaineWebber with the
NASD, and the fees, disbursements and other charges of
PaineWebber's 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 PaineWebber, including the fees, disbursements and
other charges of PaineWebber's 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 Placement 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 PaineWebber for all out-of-
pocket expenses (including the fees, disbursements and other
charges of PaineWebber counsel) reasonably incurred by
PaineWebber 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) 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 PaineWebber's and the Purchaser's
Obligations. PaineWebber's obligations under this Agreement and
the Purchasers' 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 and
the Operating Partnership herein, to the performance by the
Company and the Operating Partnership 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 PaineWebber's
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 PaineWebber and
PaineWebber's counsel.
(b) PaineWebber 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 PaineWebber or PaineWebber's counsel is material
or omits to state a fact that in the opinion of
PaineWebber's 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 PaineWebber or
PaineWebber's counsel is material or omits to state a fact
that in the opinion of PaineWebber or PaineWebber's 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 the Operating Partnership, 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 PaineWebber's
judgment, makes it impractical or inadvisable to offer the
Securities on the terms and in the manner contemplated in
the Prospectus.
(d) PaineWebber 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 LLP may rely on), each dated
the Closing Date, in form and substance satisfactory to
PaineWebber's 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 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 Securities have been duly authorized by the Company
for issuance and sale and when issued and sold pursuant
to this Placement 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 Placement 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 Placement Agreement has been duly
authorized, executed and delivered by the Company and
the Operating Partnership; the execution, delivery and
performance of this Placement 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 Placement 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) 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;
(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 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
(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.
(e) PaineWebber shall have received from
Rogers & Wells LLP, PaineWebber's 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 PaineWebber 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
Placement Agreement and at the Closing Date, PaineWebber
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 PaineWebber.
(g) PaineWebber 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 Placement 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 PaineWebber
or PaineWebber's counsel may reasonably request.
(h) On or prior to the Closing Date,
PaineWebber 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
terms and arrangements set forth in this Agreement 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 PaineWebber and PaineWebber's counsel. The
Company will furnish PaineWebber with such conformed copies
of such opinions, certificates, letters and other documents
as PaineWebber shall reasonably request and the Company
shall furnish to PaineWebber such further certificates and
documents as PaineWebber shall have reasonably requested.
6. Indemnification and Contribution.
(a) The Company agrees to indemnify and
hold PaineWebber harmless, their directors, officers,
employees and agents and each person, if any, who controls
it 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 PaineWebber, 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
PaineWebber 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
PaineWebber 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
PaineWebber furnished in writing to the Company by
PaineWebber expressly for inclusion in the Registration
Statement or the Prospectus. PaineWebber confirms to the
Company and the Company acknowledges that only the following
information appearing in the Prospectus with respect to the
offering of the Securities has been furnished to the Company
by PaineWebber for use in the Prospectus: (i) the names of
PaineWebber contained on the cover page and back cover page
of the Prospectus Supplement; and (ii) the information under
the caption "Plan of Distribution" in the Prospectus
Supplement. This indemnity agreement will be in addition to
any liability that the Company might otherwise have.
(b) PaineWebber 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 PaineWebber, 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 PaineWebber furnished in
writing to the Company by PaineWebber expressly for use in
the Registration Statement, the preliminary prospectus or
the Prospectus. This indemnity will be in addition to any
liability that PaineWebber might otherwise have; provided,
however, that in no case shall PaineWebber be liable or
responsible for any amount in excess of the Finder's Fee
received by PaineWebber.
(c) 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.
(d) 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 PaineWebber, the Company and PaineWebber 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
PaineWebber, 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 PaineWebber may be subject in such proportion as shall
be appropriate to reflect the relative benefits received by
the Company on the one hand and PaineWebber on the other.
The relative benefits received by the Company on the one
hand and PaineWebber 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 Finder's Fees received by PaineWebber, 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
PaineWebber, 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 PaineWebber, 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 PaineWebber 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), PaineWebber shall not be
required to contribute any amount in excess of the Finder's
Fees received by PaineWebber 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 Placement 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).
(e) The indemnity and contribution
agreements contained in this Section 6 and the
representations and warranties of the Company and the
Operating Partnership contained in this Placement Agreement
shall remain operative and in full force and effect
regardless of (i) any investigation made by or on behalf of
PaineWebber, (ii) acceptance of the Securities and payment
therefor or (iii) any termination of this Placement
Agreement.
7. Representations and Agreements to Survive
Delivery. All representations, warranties and agreements of the
Company and the Operating Partnership contained herein or in
certificates delivered pursuant hereto, and PaineWebber's
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 PaineWebber 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.
8. Termination. PaineWebber shall have the right by
giving notice as hereinafter specified at any time at or prior to
the Closing Date, to terminate this Placement 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
PaineWebber's 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 Placement
Agreement that, in PaineWebber's 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 PaineWebber elects to terminate this
Placement Agreement as provided in this Section, the Company
shall be notified promptly by PaineWebber by telephone, telex or
telecopy, confirmed by letter.
9. Notices. All notices or communications hereunder
shall be in writing and if sent to PaineWebber shall be mailed,
delivered, telexed or telecopied and confirmed to PaineWebber 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 Placement Agreement may change such
address for notices by sending to the other party to this
Placement Agreement written notice of a new address for such
purpose.
10. Parties. This Placement Agreement shall inure to
the benefit of, and be binding upon, the Company, the Operating
Partnership and PaineWebber 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.
11. Applicable Law. This Placement Agreement shall be
governed by, and construed in accordance with, the laws of the
State of New York.
If the foregoing correctly sets forth the understanding
between the Company, the Operating Partnership and PaineWebber,
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 PaineWebber.
Very truly yours,
PARKWAY PROPERTIES, INC.
By:
Name:
Title:
PARKWAY PROPERTIES, L.P.
By: Parkway Properties, Inc.,
its sole general partner
By:
Name:
Title:
ACCEPTED as of the date first above
written
PAINEWEBBER INCORPORATED
By:
Name:
Title:
SCHEDULE A
Purchasers Address Shares
[A] [ ] [ ]
[B] [ ] [ ]
Total [ ]
SCHEDULE B
Subsidiaries
1. Parkway Realty Services, Inc.
2. Parkway Properties, L.P.
3. Parkway Properties General Partners, Inc.
4. Golf Properties, Inc.1
5. Wink/Parkway Partnership
6. Parkway Jackson LLC
7. Parkway Mississippi LLC
8. Parkway Portfolio I LLC
9. Parkway Realty Services, LLC
10. PKY Corporation
11. Parkway Properties Tax Administration, LLC
12. Parkway Lamar LLC
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
_______________________________
1
1 The Company owns no voting shares of Gulf Properties, Inc.,
only non-voting shares.
