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): April 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 April 23, 1998, Parkway Properties, Inc. priced an
offering 2,400,000 shares of 8.75% Series A Cumulative
Redeemable Preferred Stock at $25 per share in a public
offering. Net proceeds of approximately $57.6 million will
be used to repay advances currently outstanding on the
Company's lines of credit.
The preferred stock may be redeemed by the Company at
$25.00 per share plus accrued and unpaid dividends on or
after April 23, 2003, has no stated maturity, sinking fund
or mandatory redemption and is not convertible into any
other securities of the Company.
The offering was underwritten by PaineWebber
Incorporated, J.C. Bradford & Co. and Raymond James &
Associates, Inc.
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
(1) Underwriting Agreement between Parkway Properties, Inc. a
Maryland corporation and Parkway Properties LP, a Delaware
partnership, and PaineWebber Incorporated, J.C. Bradford & Co.,
Raymond James & Associates, Inc., dated April 23, 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.
(2) Articles Supplementary of the Company
relating to the 8.75% Series A Cumulative
Redeemable Preferred Stock (incorporated by
reference to Exhibit 1 to the Company's Form 8-A
filed April 24, 1998).
(3) Opinion of Jaeckle Fleischmann & Mugel,
LLP regarding legality.
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: April 28, 1998 PARKWAY PROPERTIES, INC.
BY: /s/Sarah P. Clark
Sarah P. Clark
Senior Vice President,
Chief Financial Officer,
Treasurer and Secretary
2,400,000 Shares
PARKWAY PROPERTIES, INC.
8.75% Series A Cumulative Redeemable Preferred Stock
(par value $0.001 per share)
UNDERWRITING AGREEMENT
April 23, 1998
PAINEWEBBER INCORPORATED
J.C. BRADFORD & CO.
RAYMOND JAMES & ASSOCIATES, INC.
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"), confirms its agreement with PaineWebber
Incorporated, J.C. Bradford & Co., and Raymond James &
Associates, Inc. (the "Underwriters"), as follows:
1. Description of Securities. The Company proposes
to issue and sell to the Underwriters, severally and not jointly,
2,400,000 shares of 8.75% Series A Cumulative Redeemable
Preferred Stock, par value $0.001 per share, (the "Preferred
Stock").
The Preferred Stock will be issued in one or more
series and each series of Preferred Stock may vary, as
applicable, as to the title, specific number of shares, rank,
stated value, liquidation preference, dividend rate or rates (or
method of calculation), dividend payments dates, redemption
provisions, sinking fund requirements, conversion provisions and
any other variable terms as set forth in the applicable
certificate of designations (each, the "Articles Supplementary")
relating to such series of Preferred Stock.
The shares of Preferred 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 and agree with the Underwriters that:
(i) A registration statement on Form S-
3 (File No. 333-48161) and pre-effective amendment no. 1
thereto, with respect to the Securities, including a
prospectus, have been carefully prepared by the Company in
conformity with the requirements of the Securities Act of
1933, as amended (the "Act") and the rules and regulations
(the "1933 Act Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder, have been
filed with the Commission and declared effective. Such
registration statement and prospectus may have been amended
or supplemented prior to the date of this Underwriting
Agreement; any such amendment or supplement was so prepared
and filed, and any such amendment filed after the effective
date of such registration statement has been declared
effective. No stop order suspending the effectiveness of
either registration statement has been issued, and no
proceeding for that purpose has been instituted or
threatened by the Commission. A prospectus supplement (the
"Prospectus Supplement") setting forth the terms of the
offering, sale and plan of distribution of the Securities
and additional information concerning the Company and its
business has been or will be so prepared and will be filed
pursuant to Rule 424(b) of the 1933 Act Rules and
Regulations on or before the second business day after the
date hereof (or such earlier time as may be required by the
1933 Act Rules and Regulations). Copies of such
registration statement and prospectus, any such amendments
or supplements and all documents incorporated by reference
therein that were filed with the Commission on or prior to
the date of this Underwriting Agreement (including one fully
executed copy of the registration statement and of each
amendment thereto for the Underwriters and their counsel)
have been delivered to the Underwriters and their counsel.
The registration statement, as it may have heretofore been
amended, is referred to herein as the "Registration
Statement," and the final form of prospectus included in the
Registration Statement, as supplemented by the Prospectus
Supplement, is referred to herein as the "Prospectus." Any
reference herein to the Registration Statement, the
Prospectus or any amendment or supplement thereto shall be
deemed to refer to and include the documents incorporated by
reference therein, and any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the
Registration Statement or Prospectus shall be deemed to
refer to and include the filing after the execution hereof
of any document with the Commission deemed to be
incorporated by reference therein. For purposes of this
Underwriting Agreement, all references to the Registration
Statement and Prospectus or to any amendment or supplement
thereto shall be deemed to include any copy filed with the
Commission pursuant to its Electronic Data Gathering
Analysis and Retrieval System ("EDGAR"), and such copy shall
be identical in content to any Prospectus delivered to the
Underwriters for use in connection with the offering of the
Securities.
(ii) Each part of the Registration
Statement, when such part became or becomes effective and
the Prospectus and any amendment or supplement thereto, on
the date of filing thereof with the Commission and at the
Closing Date (as hereinafter defined), and, if later, at an
Option Closing Date (as hereinafter defined), conformed or
will conform in all material respects with the requirements
of the Act and the 1933 Act Rules and Regulations; each part
of the Registration Statement, when such part became or
becomes effective, or when such part was filed with the
Commission, did not or will not contain an untrue statement
of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading; the Prospectus and any amendment or
supplement thereto, on the date of filing thereof with the
Commission and at the Closing Date, and, if later, at an
Option Closing Date, did not or will not include an untrue
statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not
misleading; except that the foregoing shall not apply to
statements in, or omissions from, any such document in
reliance upon, and in conformity with, written information
concerning the Underwriters that was furnished to the
Company by the Underwriters specifically for use in the
preparation thereof.
(iii) The documents incorporated by
reference in the Registration Statement, the Prospectus, any
amendment or supplement thereto, when they became or become
effective under the Act or were or are filed with the
Commission under the Act or the Securities Exchange Act of
1934, as amended (the "Exchange Act"), as the case may be,
conformed or will conform in all material respects with the
requirements of the Act, the 1933 Act Rules and Regulations,
the Exchange Act and/or the rules and regulations of the
Commission thereunder (the "Exchange Act Rules and
Regulations"), as applicable.
(iv) The consolidated financial
statements of the Company together with the related
schedules and notes thereto, set forth or included or
incorporated by reference in the Registration Statement and
Prospectus fairly present the financial condition of the
Company and its consolidated subsidiaries as of the dates
indicated and the results of operations, changes in
financial position, stockholders' equity and cash flows for
the periods therein specified, in conformity with generally
accepted accounting principles consistently applied
throughout the periods involved (except as otherwise stated
therein). The summary and selected financial and
statistical data included or incorporated by reference in
the Registration Statement and the Prospectus present fairly
the information shown therein and, to the extent based upon
or derived from the financial statements, have been compiled
on a basis consistent with the financial statements
presented therein. In addition, the pro forma financial
statements of the Company, and the related notes thereto,
included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the information
shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma
financial statements and have been properly compiled on the
basis described therein, and the assumptions used in the
preparation thereof are reasonable and the adjustments used
therein are appropriate to give effect to the transactions
and circumstances referred to therein. Furthermore, all
financial statements required by Rule 3-14 of Regulation S-X
("Rule 3-14") have been included or incorporated by
reference in the Registration Statement and the Prospectus
and any such financial statements are in conformity with the
requirements of Rule 3-14. No other financial statements
are required to be set forth or to be incorporated by
reference in the Registration Statement or the Prospectus
under the Act or the 1933 Act Rules and Regulations
thereunder.
(v) Ernst & Young LLP, whose reports
are incorporated by reference in the Registration Statement,
are and, during the periods covered by their reports, were
independent public accountants as required by the Act and
the 1933 Act Rules and Regulations.
(vi) The only subsidiaries (as defined
in the 1933 Act Rules and Regulations) of the Company are
the subsidiaries listed on Schedule B hereto (the
"Subsidiaries"). Each of the Company and its Subsidiaries
has been duly incorporated or formed, as the case may be,
and is an existing corporation, general or limited
partnership, or other legal entity, as the case may be, in
good standing under the laws of its jurisdiction of
incorporation or formation, as the case may be. The Company
and each of its Subsidiaries has full power and authority
(corporate and other) to conduct its business as described
in the Registration Statement and Prospectus, and is duly
qualified or registered to do business in each jurisdiction
in which it owns or leases real property or in which the
conduct of its business requires such qualification or
registration except where the failure to be so qualified or
registered, considering all such cases in the aggregate,
would not have a material adverse effect on the business,
properties, financial position or results of operations of
the Company and its Subsidiaries taken as a whole; and,
other than the Subsidiaries, the Company owns no stock or
other beneficial interest in any corporation, partnership,
joint venture or other business entity.
(vii) All of the issued and
outstanding capital stock or ownership interests of each
Subsidiary has been duly authorized and are validly issued,
fully paid and nonassessable and is wholly-owned by the
Company, directly or through subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance,
claim or equity.
(viii) All of the issued and
outstanding shares of capital stock of the Company have been
duly authorized and are validly issued, fully paid and
nonassessable and conform to the description thereof in the
Prospectus. The stockholders of the Company have no
preemptive rights with respect to the Securities.
(ix) The Securities will be as of the
Closing Date, and the Optional Securities (as hereinafter
defined) will be as of any Option Closing Date, duly
authorized by the Company for issuance and sale pursuant to
this Underwriting Agreement; and when issued and delivered
by the Company pursuant to this Underwriting Agreement
against payment of the consideration therefor specified
herein, will be validly issued, fully paid and
nonassessable. The Securities conform to the description
thereof in the Prospectus and will not be subject to any
preemptive rights of any securityholder of the Company. No
holder of Preferred Stock will be subject to personal
liability by reason of being such a holder. The applicable
Articles Supplementary will be in full force and effect
prior to the Closing Date or the Option Closing Date, as
applicable and will comply with all applicable legal
requirements.
(x) Except as contemplated in the
Prospectus, subsequent to the respective dates as of which
information is given in the Registration Statement and the
Prospectus, the Company and its Subsidiaries have not
incurred any liabilities or obligations, direct or contin
gent; or entered into any transactions, not in the ordinary
course of business, that are material to the Company and its
Subsidiaries on a consolidated basis; and there has not been
any material change in the capital stock or structure, short-
term debt or long-term debt of the Company and its
Subsidiaries; or any material adverse change, or any
development that is reasonably likely to involve a
prospective material adverse change, in the condition
(financial or other), business, prospects, net worth or
results of operations of the Company and its Subsidiaries on
a consolidated basis; and, except for regular dividends on
the Company's Common Stock, in amounts per share that are
consistent with past practice or the charter documents of
the Company, there has been no dividend or distribution of
any kind declared, paid or made by the Company on any class
of its capital stock.
(xi) Except as set forth in the
Prospectus, there is not pending or, to the knowledge of the
Company, threatened any action, suit or proceeding to which
the Company, any of its Subsidiaries or any of its officers
or directors is a party, or that any of its properties or
other assets is the subject of, before or by any court or
governmental agency or body, that is reasonably likely to
result in any material adverse change in the condition
(financial or other), business, prospects, net worth or
results of operations of the Company and its Subsidiaries,
or might materially and adversely affect their properties or
other assets.
(xii) During the period of at least
the last 24 calendar months prior to the date of this
Underwriting Agreement, the Company has timely filed with
the Commission all documents and other material required to
be filed pursuant to Sections 13, 14 and 15(d) under the
Exchange Act.
(xiii) There are no contracts or
documents of the Company that are required to be filed as
exhibits to the Registration Statement or to any of the
documents incorporated by reference therein by the Act or
the Exchange Act or by the rules and regulations of the
Commission thereunder that have not been so filed.
(xiv) This Underwriting Agreement
has been duly authorized, executed and delivered by the
Company and the Operating Partnership.
(xv) The execution and performance of
this Underwriting Agreement and the consummation of the
transactions contemplated herein will not result in a breach
or violation of any of the terms and provisions of, or
constitute a default under, (i) any statute, agreement or
instrument to which the Company or its Subsidiaries is a
party or by which they are bound or to which any of the
property or other assets of the Company or its Subsidiaries
is subject, (ii) the articles of incorporation, by-laws,
certificate of general or limited partnership, partnership
agreement or other organizational document, as applicable,
of the Company or its Subsidiaries, or (iii) any statute,
order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or its
Subsidiaries or any of their properties or other assets; no
consent, approval, authorization or order of, filing with,
or notice to any court or governmental agency or body is
required for the consummation of the transactions
contemplated by this Underwriting Agreement in connection
with the issuance or sale of the Securities by the Company,
except such as may be required under the Act and applicable
state securities, blue sky, or real estate syndication laws,
if any, or pursuant to the listing requirements of the New
York Stock Exchange ("NYSE") or pursuant to the by-laws of
the National Association of Securities Dealers, Inc.
("NASD"); and the Company has full power and authority to
authorize, issue and sell the Securities as contemplated by
this Underwriting Agreement, free of any preemptive rights.
(xvi) The Company and its
Subsidiaries have complied in all respects with all laws,
regulations and orders applicable to them or their
respective businesses; the Company and its Subsidiaries are
not in default under any indenture, mortgage, deed of trust,
voting trust agreement, loan agreement, bond, debenture,
note agreement or evidence of indebtedness, lease, contract
or other agreement or instrument to which they are a party
or by which they or any of their properties or other assets
are bound, violation of which would individually or in the
aggregate have a material adverse effect on the Company and
its Subsidiaries on a consolidated basis, and no other party
under any such agreement or instrument to which the Company
or its Subsidiaries are a party is, to the knowledge of the
Company, in default in any material respect thereunder; and
the Company and its Subsidiaries are not in violation of
their respective articles of incorporation, by-laws,
certificate of general or limited partnership, partnership
agreement or other organizational documents, as the case may
be.
(xvii) The Company and each of its
Subsidiaries have good and marketable title to all
properties and assets, as described in the Prospectus, owned
by them, free and clear of all liens, charges, encumbrances
or restrictions, except such as are described in the
Prospectus or are not material in relation to the business
of the Company and its Subsidiaries, and the Company and its
Subsidiaries have valid, subsisting and enforceable leases
for the properties described in the Prospectus as leased by
the Company and its Subsidiaries with such exceptions as are
not material and do not interfere with the use made and
proposed to be made of such properties by the Company and
its Subsidiaries; no tenant under any of the leases pursuant
to which the Company or its Subsidiaries lease their
properties has an option or right of first refusal to
purchase the premises demised under such lease; the use and
occupancy of each of the properties of the Company and its
Subsidiaries complies in all material respects with all
applicable codes and zoning laws and regulations; the
Company and its Subsidiaries have no knowledge of any
pending or threatened condemnation or zoning change that
will in any material respect affect the size of, use of,
improvement of, construction on, or access to any of the
properties of the Company and its Subsidiaries; and the
Company and its Subsidiaries have no knowledge of any
pending or threatened proceeding or action that will in any
manner materially affect the size of, use of, improvements
or construction on, or access to any of the properties of
the Company or its Subsidiaries.
(xviii) Title insurance in favor of
the Company and its Subsidiaries is maintained with respect
to each of the properties described in the Prospectus in an
amount at least equal to the cost of acquisition of such
property, except, in each case, where the failure to
maintain such title insurance is not reasonably likely to
have a material adverse effect on the condition, financial
or otherwise, or the earnings, business affairs or business
prospects of the Company and its Subsidiaries taken as a
whole.
(xix) The mortgages and deeds of
trust encumbering the properties and assets described or
referred to in the Prospectus are not convertible into the
equity of the Company or any Subsidiary.
(xx) Except as set forth in the
Prospectus Supplement, (i) there does not exist on any of
the properties described in the Prospectus any hazardous
substances, hazardous materials, toxic substances or waste
materials (collectively, "Hazardous Materials") in unlawful
quantities, (ii) there has not occurred on or off such
properties any unlawful spills, releases, discharges or
disposal of Hazardous Materials, which presence or
occurrence would have a material adverse effect on the
condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its
Subsidiaries taken as a whole, and (iii) the Company and its
Subsidiaries have not failed to comply with all applicable
local, state and federal environmental laws, regulations,
ordinances and administrative and judicial orders relating
to the generation, recycling, sale, storage, handling,
transport and disposal of any Hazardous Materials, except
for such failures which are not reasonably likely to have a
material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business
prospects of the Company and its Subsidiaries taken as a
whole.
(xxi) Property and casualty
insurance in favor of each of the Company and its
Subsidiaries is maintained with respect to each of the
properties owned by each of them in an amount and on such
items as is reasonable and customary for businesses of this
type.
(xxii) No holder of outstanding
shares of capital stock of the Company has any rights to
have the shares of capital stock of the Company owned by
such holder to be sold in the offering of shares
contemplated by this Agreement.
(xxiii) Subsequent to the respective
dates as of which information is given in the Registration
Statement and the Prospectus, except as described therein,
(i) there has not been any material adverse change in the
assets or properties, business, results of operations,
prospects or condition (financial or otherwise) of the
Company or any of its Subsidiaries, whether or not arising
from transactions in the ordinary course of business; (ii)
neither the Company nor any of its Subsidiaries has
sustained any material loss or interference with its assets,
businesses or properties (whether owned or leased) from
fire, explosion, earthquake, flood or other calamity,
whether or not covered by insurance, or from any labor
dispute or any court or legislative or other governmental
action, order or decree; and (iii) neither the Company nor
any of its Subsidiaries has undertaken any liability or
obligation, direct or contingent, except such liabilities or
obligations undertaken in the ordinary course of business.
(xxiv) The Company has filed all
federal, state, local and foreign income tax returns which
have been required to be filed and has paid all taxes
indicated by said returns and all assessments received by it
to the extent that such taxes have become due.
(xxv) Each approval, consent, order,
authorization, designation, declaration or filing by or with
any regulatory, administrative or other governmental body
necessary in connection with the execution and delivery by
the Company of this Underwriting Agreement and the
consummation of the transactions herein contemplated has
been obtained or made and is in full force and effect.
(xxvi) The Company and its
Subsidiaries hold all material licenses, certificates and
permits from governmental authorities which are necessary to
the conduct of their businesses and are in compliance with
the terms and conditions of such licenses, certificates and
permits; and the Company and its Subsidiaries have not
infringed on any patents, patent rights, trade names,
trademarks or copyrights, which infringement is material to
the business of the Company and its Subsidiaries taken as a
whole.
(xxvii) The Company and its
Subsidiaries are conducting their respective businesses in
material compliance with all applicable laws, rules and
regulations of the jurisdictions in which they are
conducting business, including, without limitation, the
Americans with Disabilities Act of 1990 and all applicable
local, state and federal employment, truth-in-advertising,
franchising and immigration laws and regulations, except
where the failure to be so in compliance would not have a
material adverse effect on the assets or properties,
business, results of operations, prospects or condition
(financial or otherwise) of the Company and its Subsidiaries
taken as a whole.
(xxviii) No transaction has occurred
between or among the Company and any of its officers or
directors or any affiliate or affiliates of any such officer
or director that is required to be described in and is not
described or incorporated by reference in the Registration
Statement and the Prospectus.
(xxix) The Company has not taken, nor
will it take, directly or indirectly, any action designed to
or which might reasonably be expected to cause or result in,
or which has constituted or which might reasonably be
expected to constitute, the stabilization or manipulation of
the price of shares of the Common Stock, to facilitate the
sale or resale of any of the Securities.
(xxx) Commencing with the taxable
year beginning January 1, 1997, the Company will be
organized and operating in conformity with the requirements
for qualification as a "real estate investment trust" under
the Internal Revenue Code of 1986, as amended (the "Code").
The Company's method of operation will permit it to meet and
to continue to meet the requirements for taxation as a real
estate investment trust under the Code. The Company has no
intention of changing its operations or engaging in
activities which would cause it to fail to qualify, or make
economically undesirable its continued qualification as, a
real estate investment trust.
(xxxi) Neither the Company nor any
Subsidiary is an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
(xxxii) The Securities have been
approved for listing subject to official notice of issuance
on the NYSE.
3. Purchase, Sale and Delivery of Securities. On the
basis of the representations, warranties and agreements contained
herein, but subject to the terms and conditions set forth herein,
the Company agrees to issue and sell the Securities, severally
and not jointly, to the several Underwriters, and each of the
Underwriters, severally and not jointly, agrees to purchase from
the Company, the number of Securities set forth opposite that
Underwriter's name in Schedule A hereto, at a purchase price of
$24.125 per share (the "Purchase Price") reflecting an
underwriting discount equal to 3 1/2%.
The Securities to be purchased by the Underwriters will
be delivered by the Company to the office of PaineWebber
Incorporated at 1285 Avenue of the Americas, New York, New York
10019, in accordance with the terms of this Underwriting
Agreement and against payment of the purchase price therefore by
wire transfer of same day funds payable to the order of the
Company in the amount of $57,900,000 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 April
28, 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
Underwriters and the Company mutually agree, such time being
herein referred to as the "Closing Date." If requested by the
Underwriters, the Securities will be prepared in definitive form
and in such authorized denominations and registered in such names
as the Underwriters may request upon at least two business days'
prior notice to the Company and will be made available for
checking and packaging at the Underwriters' offices at least one
business day prior to the Closing Date.
4. Covenants. The Company and the Operating
Partnership covenant and agree with the Underwriters that:
(a) The Company will cause the
Prospectus Supplement to be filed as required by Section
2(a) hereof (but only if the Underwriters or their counsel
have not reasonably objected thereto by notice to the
Company after having been furnished a copy a reasonable time
prior to filing) and will notify the Underwriters promptly
of such filing. During the period in which a prospectus
relating to the Securities is required to be delivered under
the Act or such date which is 90 days after the Closing
Date, whichever is later, the Company will notify the
Underwriters promptly of the time when any subsequent
amendment to the Registration Statement has become effective
or any subsequent supplement to the Prospectus has been
filed, of any request by the Commission for any amendment or
supplement to the Registration Statement or Prospectus or
for additional information; the Company will prepare and
file with the Commission, promptly upon the Underwriters'
request, any amendments or supplements to the Registration
Statement or Prospectus that, in the Underwriters' opinion,
may be necessary or advisable in connection with the
Underwriters' distribution of the Securities; and the
Company will file no amendment or supplement to the
Registration Statement or Prospectus (other than any
prospectus supplement relating to the offering of other
securities registered under the Registration Statement or
any document required to be filed under the Exchange Act
that upon filing is deemed to be incorporated by reference
therein) to which the Underwriters or their counsel shall
reasonably object by notice to the Company after having been
furnished a copy a reasonable time prior to the filing.
(b) The Company will advise the
Underwriters, promptly after it shall receive notice or
obtain knowledge thereof, of the issuance by the Commission
of any stop order suspending the effectiveness of the
Registration Statement, of the suspension of the
qualification or registration of the Securities for offering
or sale in any jurisdiction, or of the initiation or
threatening of any proceeding for any such purpose; and it
will promptly use its best efforts to prevent the issuance
of any stop order or to obtain its withdrawal if such a stop
order should be issued.
(c) The Company will comply with all
requirements imposed upon it by the Act, the 1933 Act Rules
and Regulations, the Exchange Act and the Exchange Act Rules
and Regulations as from time to time in force, so far as
necessary to permit the continuance of sales of, or dealings
in, the Securities as contemplated by the provisions hereof
and the Prospectus. If during such period where a
prospectus relating to the Securities is required to be
delivered under the Act or such date which is 90 days after
the Closing Date, whichever is later, any event occurs as a
result of which, in the opinion of Underwriters' counsel,
the Registration Statement contains an untrue statement of a
material fact or omits to state a material fact required to
be stated therein or necessary to make the statements
therein not misleading or the Prospectus as then amended or
supplemented would include an untrue statement of a material
fact or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances then
existing, not misleading, or if during such period it is
necessary to amend or supplement the Registration Statement
or Prospectus to comply with the Act, the Company will
promptly notify the Underwriters and will amend or
supplement the Registration Statement or Prospectus (at the
expense of the Company) so as to correct such statement or
omission or effect such compliance.
(d) The Company will furnish to the
Underwriters copies of the Registration Statement, the
Prospectus (including all documents incorporated by
reference therein) and all amendments and supplements to the
Registration Statement and Prospectus that are filed with
the Commission during the period in which a prospectus
relating to the Securities is required to be delivered under
the Act or such date which is 90 days after the Closing
Date, whichever is later (including all documents filed with
the Commission during such period that are deemed to be
incorporated by reference therein), in each case as soon as
available and in such quantities as the Underwriters may
from time to time reasonably request.
(e) During the period of five years
commencing on the date upon which the Prospectus Supplement
is filed pursuant to Rule 424(b) under the Act, the Company
will furnish the Underwriters with copies of filings of the
Company under the Act and Exchange Act and with all other
financial statements and periodic and special reports it
distributes generally to the holders of any class of its
capital stock.
(f) The Company will make generally
available to its security holders as soon as practicable,
and in the manner contemplated by Rule 158 of the 1933 Act
Rules and Regulations but in any event not later than 15
months after the end of the Company's current fiscal
quarter, an earning statement (which need not be audited)
covering a 12-month period beginning after the date upon
which the Prospectus Supplement is filed pursuant to Rule
424(b) under the Act that shall satisfy the provisions of
Section 11(a) of the Act and Rule 158 of the 1933 Act Rules
and Regulations and will advise the Underwriters in writing
when such statement has been made available.
(g) Whether or not the transactions
contemplated by this Underwriting Agreement are consummated
or this Underwriting Agreement is terminated, the Company
will pay, or reimburse if paid by the Underwriters, all
costs and expenses incident to the performance of the
obligations of the Company under this Underwriting
Agreement, including but not limited to costs and expenses
of or relating to (i) the preparation, printing and filing
of the Registration Statement and exhibits thereto, each
preliminary prospectus, the Prospectus and any amendment or
supplement to the Registration Statement or the Prospectus,
(ii) the preparation and delivery of certificates
representing the Securities, (iii) the word processing,
printing and reproduction of this Underwriting Agreement,
(iv) the costs incurred by the Company in furnishing
(including costs of shipping, mailing and courier) such
copies of the Registration Statement, the Prospectus and any
preliminary prospectus, and all amendments and supplements
thereto, as may be requested for use in connection with the
offering and sale of the Securities by the Underwriters or
by dealers to whom Securities may be sold, (v) the listing
of the Securities on the NYSE, (vi) any filings required to
be made by the Underwriters with the NASD, and the fees,
disbursements and other charges of Underwriters' counsel in
connection therewith, (vii) the registration or
qualification of the Securities for offer and sale under the
securities or blue sky laws of such jurisdictions designated
by the Underwriters, including the fees, disbursements and
other charges of Underwriters' counsel in connection
therewith, and the preparation and printing of a blue sky
memoranda, (viii) counsel to the Company, (ix) the transfer
agent for the Securities and (x) the Accountants.
(h) If this Underwriting Agreement
shall be terminated pursuant to any of the provisions hereof
or if for any reason the Company shall be unable to perform
their obligations hereunder, the Company will reimburse the
Underwriters for all out-of-pocket expenses (including the
fees, disbursements and other charges of Underwriters'
counsel) reasonably incurred by the Underwriters in
connection herewith.
(i) The Company will not at any time,
directly or indirectly, take any action designed to, or
which might reasonably be expected, to cause or result in,
or which has constituted or which might reasonably be
expected to constitute, the stabilization of the price of
the Common Stock to facilitate the sale or resale of any of
the Securities.
(j) The Company will apply the net
proceeds from the sale of the Securities as set forth under
the caption "Use of Proceeds" in the Prospectus Supplement.
(k) Commencing with its taxable year
beginning January 1, 1997, the Company will elect to, and
continue, to qualify as a "real estate investment trust"
under the Code, and will use its best efforts to continue to
meet the requirements to qualify as a "real estate
investment trust."
5. Conditions of Underwriters' Obligations. The
Underwriters obligation to purchase and pay for the Securities as
provided herein shall be subject to the accuracy, as of the date
hereof and the Closing Date (as if made at the Closing Date), of
the representations and warranties of the Company 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 the Underwriters' knowledge or the knowledge of the
Company, threatened by the Commission, nor has any state
securities authority suspended the qualification or
registration of the Securities for offering or sale in any
jurisdiction and any request of the Commission for
additional information (to be included in the Registration
Statement or the Prospectus or otherwise) shall have been
complied with the satisfaction of the Underwriters and
Underwriters' counsel.
(b) The Underwriters shall not have
advised the Company that the Registration Statement or any
amendment thereto contains an untrue statement of fact that
in the opinion of the Underwriters or Underwriters' counsel
is material or omits to state a fact that in the opinion of
the Underwriters or Underwriters' counsel is material, and
is required to be stated therein or is necessary to make the
statements therein not misleading, or that the Prospectus,
or any amendment or supplement thereto, contains an untrue
statement of fact that in the opinion of the Underwriters or
Underwriters' counsel is material or omits to state a fact
that in the opinion of the Underwriters or Underwriters'
counsel is material, and is necessary in light of the
circumstance under which they were made, to make the
statements therein not misleading.
(c) Except as contemplated in the
Prospectus Supplement, subsequent to the respective dates as
of which information is included or incorporated by
reference in the Registration Statement and the Prospectus,
there shall not have been any change, on a consolidated
basis, in the equity capitalization, short-term debt or long-
term debt of the Company or 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 the Underwriters' judgment, makes it
impractical or inadvisable to offer or deliver the
Securities on the terms and in the manner contemplated in
the Prospectus.
(d) The Underwriters shall have
received the opinions of Jaeckle Fleischmann & Mugel, LLP,
counsel for the Company, and Piper & Marbury, L.L.P.,
special Maryland counsel to the Company (as to which,
Jaeckle Fleischmann & Mugel, LLP and Rogers & Wells LLP may
rely on), each dated the Closing Date, in form and substance
satisfactory to Underwriters' counsel to the effect that
(i) Each of the Company and its
Subsidiaries has been duly incorporated or formed, as
the case may be, and is validly existing as a
corporation, general or limited partnership, or other
legal entity, as the case may be, in good standing
under the laws of its jurisdiction of incorporation or
formation, as the case may be, and has full power
(corporate or other) and authority to conduct its
business as described in the Registration Statement and
Prospectus, and is duly qualified or registered to do
business in each jurisdiction in which it owns or
leases real property or in which the conduct of its
business requires such qualification or registration,
except where the failure to be so qualified or
registered, considering all such cases in the
aggregate, does not involve a material risk to the
business, properties, financial position or results of
operations of the Company and its Subsidiaries taken as
a whole;
(ii) The Company has authorized and
issued capital stock as set forth in Exhibit A to the
Piper & Marbury LLP opinion all of the issued and
outstanding shares of capital stock of the Company have
been duly and validly authorized and issued; and all of
the issued and outstanding shares of capital stock of
the Company are fully paid and nonassessable and none
of them was issued in violation of any preemptive or
other similar right. The Securities have been duly
authorized by the Company for issuance and sale and
when issued and sold pursuant to this Underwriting
Agreement will be duly and validly issued, fully paid
and nonassessable and none of them will have been
issued in violation of any preemptive or other similar
right. Except as disclosed in the Registration
Statement and the Prospectus, there is no outstanding
option, warrant or other right calling for the issuance
of, and, to the knowledge of such counsel, no
commitment, plan or arrangement to issue, any share of
capital stock of the Company or any security
convertible into, exercisable for, or exchangeable for
capital stock of the Company. No holder of outstanding
shares of capital stock of the Company has any rights
to have shares of capital stock of the Company owned by
such holder to be sold in the offering of shares
contemplated by this 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. The applicable
Articles Supplementary are in full force and effect and
comply with all applicable legal requirements.
(iii) The Registration
Statement has become effective under the Act, the
Prospectus Supplement has been filed as required by
Section 2(a) hereof and, to the best knowledge of such
counsel, after due inquiry, no stop order suspending
the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose has been
instituted or threatened by the Commission;
(iv) Each part of the Registration
Statement, when such part became effective, and the
Prospectus and any amendment or supplement thereto, on
the date of filing thereof with the Commission and at
the Closing Date, complied as to form in all material
respects with the requirements of the Act and the 1933
Act Rules and Regulations, and such counsel has no
reason to believe that either (i) any part of the
Registration Statement, when such part became effective
or was filed under the Act or Exchange Act, contained
an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading
or (ii) the Prospectus and any amendment or supplement
thereto, on the date of filing thereof with the
Commission or at the Closing Date, included an untrue
statement of a material fact or omitted to state a
material fact necessary to make the statements therein,
in the light of the circumstances under which they were
made, not misleading; and the documents incorporated by
reference in the Registration Statement or Prospectus
or any amendment or supplement thereto, when they
became effective under the Act or were filed with the
Commission under the Act or Exchange Act, as the case
may be, complied as to form in all material respects
with the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the
Commission thereunder; it being understood that such
counsel need express no opinion as to the financial
statements or other financial data included in any
other documents mentioned in this clause;
(v) The descriptions in the
Registration Statement and Prospectus of statutes,
legal and governmental proceedings, contracts and other
documents are accurate and fairly present the
information required to be shown; and such counsel does
not know of any statutes or legal or governmental
proceedings required to be described in the Prospectus
that are not described as required, or of any contracts
or documents of a character required to be described in
the Registration Statement or Prospectus (or required
to be filed under the Exchange Act if upon such filing
they would be incorporated by reference therein) or to
be filed as exhibits to the Registration Statement that
are not described and filed as required;
(vi) This Underwriting Agreement
has been duly authorized, executed and delivered by the
Company and the Operating Partnership; the execution,
delivery and performance of this Underwriting Agreement
and the consummation of the transactions contemplated
herein will not result in a breach or violation of any
of the terms and provisions of, or constitute a default
under, (a) any statute, indenture, mortgage, deed of
trust, voting trust agreement, loan agreement, bond,
debenture, note agreement or evidence of indebtedness,
lease, contract or other agreement or instrument known
to such counsel to which the Company or its
Subsidiaries are a party or by which they are bound or
to which any of the property or other assets of the
Company or its Subsidiaries is subject, (b) the
articles of incorporation, by-laws, certificate of
general or limited partnership, partnership agreement,
or other organizational document of the Company or any
of its Subsidiaries, as applicable, or (c) any order,
rule or regulation known to such counsel of any court
or governmental agency or body having jurisdiction over
the Company or its Subsidiaries or any of their
properties or other assets; and no consent, approval,
authorization, notice to, order of, or filing with, any
court or governmental agency or body is required for
the consummation of the transactions contemplated by
this Underwriting Agreement in connection with the
issuance or sale of the Securities by the Company,
except such as have been obtained under the Act or from
the NYSE and the NASD;
(vii) Commencing with the
taxable year beginning January 1, 1997, the Company has
continuously been organized and operated in conformity
with the requirements for qualification as a "real
estate investment trust" under the Code. The Company's
method of operation will permit it to continue to meet
the requirements for taxation as a "real estate
investment trust" under the Code. The federal income
tax treatment described in the Prospectus under the
caption "Federal Income Tax Considerations" is
accurate;
(viii) 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) The Underwriters shall have
received from Rogers & Wells LLP, Underwriters' counsel,
such opinion or opinions, dated the Closing Date, with
respect to the organization of the Company, the validity of
the Securities, the Registration Statement, the Prospectus
and other related matters as the Underwriters reasonably may
request, and such counsel shall have received such papers
and information as they request to enable them to pass upon
such matters.
(f) At the time of execution of this
Underwriting Agreement and at the Closing Date, the
Underwriters shall have received a letter, dated the date of
delivery thereof, from Ernst & Young LLP, the independent
public accountants of the Company, in the form previously
agreed to by the Underwriters.
(g) The Underwriters shall have
received from the Company a certificate, signed by the
President or a Vice President and by the principal financial
or accounting officer of the Company, dated the Closing
Date, to the effect that, to the best of their knowledge
based upon reasonable investigation:
(i) The representations and warranties
of the Company in this Underwriting Agreement are true
and correct, as if made at and as of the Closing Date,
and the Company has complied with all the agreements
and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the
effectiveness of the Registration Statement has been
issued, and no proceeding for that purpose has been
instituted or is threatened by the Commission nor has
any state securities authority suspended the
qualification or registration of the Securities for
offering or sale in any jurisdiction;
(iii) Since the effective date of the
Registration Statement, there has occurred no event
required to be set forth in an amendment or supplement
to the Registration Statement or Prospectus that has
not been so set forth, and there has been no document
required to be filed under the Exchange Act and the
Exchange Act Rules and Regulations of the Commission
thereunder that upon such filing would be deemed to be
incorporated by reference in the Prospectus that has
not been so filed;
(iv) Since the respective dates as of which
information is given in the Registration Statement and
the Prospectus, (a) there has not been, and no
development has occurred which could reasonably be
expected to result in, a material adverse change in the
general affairs, business, business prospects,
properties, management, condition (financial or
otherwise) or results of operations of the Company and
its Subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of
business, in each case other than as set forth in or
contemplated by the Registration Statement and the
Prospectus and (b) neither the Company nor any of its
Subsidiaries has sustained any material loss or
interference with its business or properties from fire,
explosion, flood or other casualty, whether or not
covered by insurance, or from any labor dispute or any
court or legislative or other governmental action,
order or decree, which is not set forth in the
Registration Statement and the Prospectus; and
(v) such other matters as the
Underwriters or Underwriters' counsel may reasonably
request.
(h) On or prior to the Closing Date,
the Underwriters shall have received the executed agreements
referred to in Section 5(k).
(i) Prior to the Closing Date, the
Securities shall have been duly authorized for listing by
the NYSE upon official notice of issuance.
(j) The NASD shall have approved the
underwriting terms and arrangements and such approval shall
not have been withdrawn or limited.
(k) All such opinions, certificates,
letters and other documents will be in compliance with the
provisions hereof only if they are satisfactory in form and
substance to the Underwriters and Underwriters' counsel.
The Company will furnish the Underwriters with such
conformed copies of such opinions, certificates, letters and
other documents as the Underwriters shall reasonably request
and the Company shall furnish to the Underwriters such
further certificates and documents as the Underwriters shall
have reasonably requested.
6. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold the
Underwriters harmless, their directors, officers, employees
and agents and each person, if any, who controls them within
the meaning of Section 15 of the Act or Section 20 of the
Exchange Act from and against any and all losses, claims,
liabilities, expenses and damages (including, but not
limited to, any and all investigative, legal and other
expenses reasonably incurred in connection with, and any and
all amounts paid in settlement of, any action, suit or
proceeding between any of the indemnified parties and any
indemnifying parties or between any indemnified party and
any third party, or otherwise, or any claim asserted), as
and when incurred to which the Underwriters, or any such
person, may become subject under the Act, the Exchange Act
or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims,
liabilities, expenses or damages arise out of or are based
on (i) any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus, the
Registration Statement or the Prospectus or any amendment or
supplement to the Registration Statement or the Prospectus
or in any documents filed under the Exchange Act and deemed
to be incorporated by reference into the Prospectus, or in
any application or other document executed by or on behalf
of the Company or based on written information furnished by
or on behalf of the Company filed in any jurisdiction in
order to qualify the Securities under the securities or blue
sky laws thereof or filed with the Commission, (ii) the
omission or alleged omission to state in such document a
material fact required to be stated in it or necessary to
make the statements in it not misleading or (iii) any act or
failure to act or any alleged act or failure to act by the
Underwriters in connection with, or relating in any manner
to, the Securities or the offering contemplated hereby, and
which is included as part of or referred to in any loss,
claim, damage, liability or action arising out of or based
upon matters covered by clause (i) or (ii) above (provided
that the Company shall not be liable under this clause (iii)
to the extent it is finally judicially determined by a court
of competent jurisdiction that such loss, claim, damage,
liability or action resulted directly from any such acts or
failures to act undertaken or omitted to be taken by the
Underwriters through their gross negligence or willful
misconduct); provided that the Company will not be liable to
the extent that such loss, claim, liability, expense or
damage arises from the sale of the Securities in the public
offering to any person and is based on an untrue statement
or omission or alleged untrue statement or omission made in
reliance on and in conformity with information relating to
the Underwriters furnished in writing to the Company by the
Underwriters expressly for inclusion in the Registration
Statement or the Prospectus. The Underwriters confirm to
the Company and the Company acknowledges that only the
following information appearing in the Prospectus with
respect to the public offering of the Securities has been
furnished to the Company by the Underwriters for use in the
Prospectus: (i) the names of the Underwriters contained on
the cover page and back cover page of the Prospectus
Supplement; (ii) the stabilization legend on the inside
front cover page of the Prospectus Supplement; and (iii) the
information in the first, second and sixth paragraphs under
the caption "Underwriting" in the Prospectus Supplement.
This indemnity agreement will be in addition to any
liability that the Company might otherwise have.
(b) The Underwriters will indemnify and hold
harmless the Company, each person, if any, who controls the
Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, each director of the Company
and each officer of the Company who signs the Registration
Statement to the same extent as the foregoing indemnity from
the Company to the Underwriters, but only insofar as losses,
claims, liabilities, expenses or damages arise out of or are
based on any untrue statement or omission or alleged untrue
statement or omission made in reliance on and in conformity
with information relating to the Underwriters furnished in
writing to the Company by the Underwriters expressly for use
in the Registration Statement, the preliminary prospectus or
the Prospectus. This indemnity will be in addition to any
liability that the Underwriters might otherwise have;
provided, however, that in no case shall the Underwriters be
liable or responsible for any amount in excess of the
underwriting discounts and commissions received by the
Underwriters.
(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 the Underwriters, the Company and the
Underwriters will contribute to the total losses, claims,
liabilities, expenses and damages (including any
investigative, legal and other expenses reasonably incurred
in connection with, and any amount paid in settlement of,
any action, suit or proceeding or any claim asserted, but
after deducting any contribution received by the Company
from persons other than the Underwriters, such as persons
who control the Company within the meaning of the Act,
officers of the Company who signed the Registration
Statement and directors of the Company, who also may be
liable for contribution) to which the Company and the
Underwriters may be subject in such proportion as shall be
appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other.
The relative benefits received by the Company on the one
hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in
the table on the cover page of the Prospectus Supplement.
If, but only if, the allocation provided by the foregoing
sentence is not permitted by applicable law, the allocation
of contribution shall be made in such proportion as is
appropriate to reflect not only the relative benefits
referred to in the foregoing sentence but also the relative
fault of the Company on the one hand, and the Underwriters,
on the other, with respect to the statements or omissions
which resulted in such loss, claim, liability, expense or
damage, or action in respect thereof, as well as any other
relevant equitable considerations with respect to such
offering. Such relative fault shall be determined by
reference to whether the untrue or alleged untrue statement
of a material fact or omission or alleged omission to state
a material fact relates to information supplied by the
Company or the Underwriters, the intent of the parties and
their relative knowledge, access to information and
opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it
would not be just and equitable if contributions pursuant to
this Section 6(d) were to be determined by pro rata
allocation or by any other method of allocation which does
not take into account the equitable considerations referred
to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, liability, expense or
damage, or action in respect thereof, referred to above in
this Section 6(d) shall be deemed to include, for purpose of
this Section 6(d), any legal or other expenses reasonably
incurred by such indemnified party in connection with
investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6(d), the
Underwriters shall not be required to contribute any amount
in excess of the underwriting discounts and commissions
received by the Underwriters and no person found guilty of
fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) will be entitled to contribution from any
person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 6(d), any
person who controls a party to this Underwriting Agreement
within the meaning of the Act will have the same rights to
contribution as that party, and each officer of the Company
who signed the Registration Statement will have the same
rights to contribution as the Company, subject in each case
to the provisions hereof. Any party entitled to
contribution, promptly after receipt of notice of
commencement of any action against such party in respect of
which a claim for contribution may be made under this
Section 6(d), will notify any such party or parties from
whom contribution may be sought, but the omission so to
notify will not relieve the party or parties from whom
contribution may be sought from any other obligation it or
they may have under this Section 6(d). Except for a
settlement entered into pursuant to the last sentence of
Section 6(c) hereof, no party will be liable for
contribution with respect to any action or claim settled
without its written consent (which consent will not be
unreasonably withheld).
(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 Underwriting
Agreement shall remain operative and in full force and
effect regardless of (i) any investigation made by or on
behalf of the Underwriters, (ii) acceptance of the
Securities and payment therefor or (iii) any termination of
this Underwriting Agreement.
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 the Underwriters'
agreements contained in Section 6 hereof, shall remain operative
and in full force and effect regardless of any investigation made
by or on behalf of the Underwriters or any controlling persons,
or the Company or any of its officers, directors or any
controlling persons, and shall survive delivery of and payment
for the Securities hereunder.
8. Termination. The Underwriters shall have the
right by giving notice as hereinafter specified at any time at or
prior to the Closing Date, to terminate this Underwriting
Agreement if (i) the Company shall have failed, refused or been
unable, at or prior to the Closing Date, to perform any agreement
on its part to be performed hereunder, (ii) any other condition
of the Underwriters' obligations hereunder is not fulfilled when
due, (iii) trading on the NYSE shall have been wholly suspended,
(iv) minimum or maximum prices for trading shall have been fixed,
or maximum ranges for prices for the Common Stock shall have been
required on the NYSE by the NYSE or by order of the Commission or
any other governmental authority having jurisdiction, (v) a
banking moratorium shall have been declared by federal or New
York authorities, or (vi) an outbreak of major hostilities in
which the United States is involved, a declaration of war by
Congress, any other substantial national or international
calamity or any other event or occurrence of a similar character
shall have occurred since the execution of this Underwriting
Agreement that, in the Underwriters' judgment, makes it
impractical or inadvisable to proceed with the completion of the
sale of and payment for the Securities. Any such termination
shall be without liability of any party to any other party with
respect to Securities not purchased by reason of such termination
except that the provisions of Section 4(g) and Section 6 hereof
shall at all times be effective. If the Underwriters elect to
terminate this Underwriting Agreement as provided in this
Section, the Company shall be notified promptly by the
Underwriters by telephone, telex or telecopy, confirmed by
letter.
9. Notices. All notices or communications hereunder
shall be in writing and if sent to the Underwriters shall be
mailed, delivered, telexed or telecopied and confirmed to the
Underwriters at 1285 Avenue of the Americas, New York, New York
10019, c/o Real Estate investment Banking, attention: David R.
Jarvis (with copy to Jay L. Bernstein, Esq., c/o Rogers & Wells,
200 Park Avenue, New York, New York 10166), or if sent to the
Company, shall be mailed, delivered, telexed or telecopied and
confirmed to Steven G. Rogers, c/o the Company at 300 One Jackson
Place, 188 East Capitol Street, Jackson, Mississippi 39201 (with
copy to Joseph P. Kubarek, Esq., c/o Jaeckle Fleischmann & Mugel,
LLP, Fleet Bank Building, Twelve Fountain Plaza, Buffalo, New
York 14202-2292). Any party to this Underwriting Agreement may
change such address for notices by sending to the other party to
this Underwriting Agreement written notice of a new address for
such purpose.
10. Parties. This Underwriting Agreement shall inure
to the benefit of, and be binding upon, the Company, the
Operating Partnership and the Underwriters and their respective
successors and the controlling persons, officers, directors,
employees and representatives referred to in Section 6 hereof,
and no other person will have any right or obligation hereunder.
11. Applicable Law. This Underwriting Agreement shall
be governed by, and construed in accordance with, the laws of the
State of New York.
12. Over-allotment Option.
(a) In addition to the Securities being sold by the
Company and described in Section 1 hereof (which are referred to
herein as the "Firm Securities"), the Underwriters, at the
Underwriters' option, shall have the right to purchase from the
Company up to an aggregate 360,000 additional shares of Preferred
Stock ("Optional Securities"). The first two paragraphs of
Section 3 hereof shall be deemed to apply only to the purchase,
sale and delivery of the Firm Securities. References in those
two paragraphs to the "Securities" shall be deemed to be
references to the "Firm Securities;" except as otherwise provided
in this Section 12, other references in this Underwriting
Agreement to the "Securities" shall be deemed to include the Firm
Securities and the Optional Securities.
(b) Upon written notice from the Underwriters given to
the Company not more than 30 days subsequent to the date of the
public offering of the Securities, the Underwriters may purchase
all or less than all of the Optional Securities at the purchase
price per share to be paid for the Firm Securities. Such
Optional Securities may be purchased by the Underwriters only for
the purpose of covering over-allotments made in connection with
the sale of the Firm Securities. No Optional Securities shall be
sold or delivered unless the Firm Securities previously have
been, or simultaneously are, sold and delivered. The right to
purchase the Optional Securities or any portion thereof may be
surrendered and terminated at any time upon notice by the
Underwriters to the Company. The "Closing Date" as defined in
Section 3 hereof, shall be deemed to be the "Closing Date," and
the time for the delivery of, and payment for, the Optional
Securities, is herein referred to as the "Option Closing Date"
(which may be the Closing Date). The Option Closing Date shall
be determined by the Underwriters but shall be not later than 10
days after the Underwriters give to the Company written notice of
election to purchase Optional Securities. The preparation,
registration, checking and delivery of, and payment for, the
Optional Securities shall occur or be made in the same manner as
provided in Section 3 hereof for the Firm Securities, except as
the Underwriters and the Company may otherwise agree.
(c) The conditions to the Underwriters' obligations
set forth in Section 5 shall be deemed to be conditions to the
Underwriters' obligation to purchase and pay for the Securities
to be purchased on each of the Closing Date and the Option
Closing Date, as the case may be; references in that Section and
in Sections 2, 8 and 9 hereof to the "Closing Date" shall be
deemed to be references to the Closing Date or the Option Closing
Date, as the case may be, and references to the "Securities" in
Section 5 hereof shall be deemed to be references to the
Securities to be purchased at such Closing Date. A termination
of this Underwriting Agreement as to the Optional Securities
after the Closing Date will not terminate this Underwriting
Agreement as to the Firm Securities.
13. Default by One or More of the Underwriters. If, on
either the Closing Date or the Option Closing Date, any
Underwriter defaults in the performance of its obligations under
this Agreement, the remaining non-defaulting Underwriters shall
be obligated to purchase the Securities which the defaulting
Underwriter agreed but failed to purchase on such Closing Date in
the respective proportions which the number of Firm Securities
set forth opposite the name of each remaining non-defaulting
Underwriter in Schedule A hereto bears to the total number of
Firm Securities set forth opposite the names of all the remaining
non-defaulting Underwriters in Schedule A hereto; provided,
however, that the remaining non-defaulting Underwriters shall not
be obligated to purchase any of the Securities on such Closing
Date if the total number of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase on such
date exceeds 9.09% of the total number of Securities to be
purchased on such Closing Date, and any remaining non-defaulting
Underwriter shall not be obligated to purchase more than 110% of
the number of Securities which it agreed to purchase on such
Closing Date. If the foregoing maximums are exceeded, the
remaining non-defaulting Underwriters, or those other
underwriters satisfactory to the Underwriters who so agree, shall
have the right, but shall not be obligated, to purchase, in such
proportion as may be agreed upon among them, all the Securities
to be purchased on such Closing Date. If the remaining
Underwriters or other underwriters satisfactory to the
Underwriters do not elect to purchase the Securities which the
defaulting Underwriter or Underwriters agreed but failed to
purchase on such Closing Date, this Agreement (or, with respect
to the Option Closing Date, the obligation of the Underwriters to
purchase, and of the Company to sell, the Option Securities)
shall terminate without liability on the part of any non-
defaulting Underwriter or the Company, except that the Company
will continue to be liable for the payment of expenses to the
extent set forth in Sections 4(g) and 4(h). As used in this
Agreement, the term "Underwriter" includes, for all purposes of
this Agreement unless the context requires otherwise, any party
not listed in Schedule A hereto who, pursuant to this Section 13,
purchases Firm Securities which a defaulting Underwriter agreed
but failed to purchase.
Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have to the Company for
damages caused by its default. If other underwriters are
obligated or agree to purchase the Securities of a defaulting or
withdrawing Underwriter, either the Underwriters or the Company
may postpone the Closing Date for up to seven full business days
in order to effect any changes that in the opinion of counsel for
the Company or counsel for the Underwriters may be necessary in
the Registration Statement, the Prospectus or in any other
document or arrangement.
If the foregoing correctly sets forth the understanding
between the Company, the Operating Partnership and the
Underwriters, please so indicate in the space provided below for
that purpose, whereupon this letter shall constitute a binding
agreement between the Company, the Operating Partnership and the
Underwriters.
Very truly yours,
PARKWAY PROPERTIES, INC.
By:
Name:
Title:
PARKWAY PROPERTIES LP
By: Parkway Properties
General Partners, Inc.,
its sole general partner
By:
Name:
Title:
ACCEPTED as of the date first above
written
PAINEWEBBER INCORPORATED
By:
Name:
Title:
For itself and as Representative
of the several Underwriters named
in Schedule A hereto
SCHEDULE A
Underwriter Number of
Shares
PaineWebber Incorporated 1,100,000
J.C. Bradford & Co. 650,000
Raymond James & Associates, Inc. 650,000
Total 2,400,000
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
The Company owns no voting shares of Golf Properties, Inc. only non-voting
shares.
JAECKLE FLEISCHMANN & MUGEL, LLP
A T T O R N E Y A T L A W
FLEET BANK BUILDING, TWELVE FOUNTAIN PLAZA
BUFFALO, NEW YORK 14202-2292
TEL (716) 856-0600 FAX (716) 856-0432
April 23, 1998
Parkway Properties, Inc.
One Jackson Place Suite 1000
188 East Capitol Street
Jackson, Mississippi 39201
Ladies and Gentlemen:
Re: Registration Statement on Form S-3 under the
Securities Act of 1933, No. 333-48161 as amended
(the "Registration Statement"); Issuance and Sale
of up to 2,760,000 shares of 8.75% Series A
Cumulative Redeemable Preferred Stock, par value
$0.001 per share (Series A Preferred Stock")
As your counsel we have examined the Registration
Statement and Prospectus Supplement dated April 23, 1998 and we
are familiar with the documents referred to therein and
incorporated therein by reference, as well as Parkway's Articles
of Incorporation, as amended, and Bylaws, as amended, such
records of proceedings of Parkway as we deemed material, and such
other proceedings of Parkway as we deemed necessary for the
purpose of this opinion.
We have examined the proceedings heretofore taken and
we are informed as to the procedures proposed to be followed by
Parkway in connection with the authorization, issuance and sale
of the shares of Series A Preferred Stock. In our opinion the
shares of Series A Preferred Stock to be issued by Parkway will
be, when issued and paid for pursuant to the Registration
Statement and Prospectus Supplement dated April 23, 1998 and the
exhibits thereto, duly authorized for issuance by all necessary
corporate action and, upon the issuance thereof in accordance
with their terms, the shares of Series A Preferred Stock will be
legally issued, fully paid and non-assessable.
We consent to the incorporation by reference of this
opinion letter as an exhibit to the Registration Statement.
Very truly yours,
JAECKLE FLEISCHMANN & MUGEL, LLP
BUFFALO, NEW YORK - ROCHESTER, NEW YORK
