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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): April 20, 1999
CAMDEN PROPERTY TRUST
(Exact name of Registrant as specified in its Charter)
TEXAS 1-12110 76-6088377
(State or other jurisdiction of (Commission file number) (I.R.S. Employer
incorporation or organization) Identification Number)
Three Greenway Plaza, Suite 1300, Houston, Texas 77046
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (713) 354-2500
Not applicable
(Former name or former address, if changed since last report)
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ITEM 5. OTHER EVENTS.
Camden Property Trust, a Texas real estate investment trust (the
"Company"), has completed an offering of 7% Notes Due 2004 in an aggregate
principal amount of $200,000,000 (the "Notes") as described in the Company's
Prospectus Supplement dated April 15, 1999 to the Company's Prospectus dated
April 21, 1997 (the "Notes Offering"). The Notes were issued pursuant to the
Company's existing shelf registration statement.
The Notes bear interest at 7% from April 20, 1999, with interest
payable each April 15 and October 15 beginning October 15, 1999. The entire
principal amount of the Notes is due on April 15, 2004. The Notes are redeemable
at any time at the option of the Company, in whole or in part, at a redemption
price equal to the principal amount and accrued interest of the Notes being
redeemed, plus a make-whole premium.
The Notes were priced at a discount such that the Notes were offered to
the public at 99.440% of their face amount. The Notes Offering was underwritten
by Chase Securities Inc. , J.P. Morgan Securities Inc., NationsBanc Montgomery
Securities LLC, Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated and Warburg Dillon Read LLC (the "Underwriters") pursuant to the
Underwriting Agreement among the Company and the Underwriters dated April 15,
1999. The Notes were issued under an Indenture between the Company and U.S.
Trust Company of Texas, N.A., as trustee.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(c) Exhibits.
1.1 Form of Underwriting Agreement among the Company and
the Underwriters dated April 15, 1999 relating to the
Notes Offering.
4.1 Indenture dated as of February 15, 1996 between the
Company and U.S. Trust Company of Texas, N.A., as
trustee (filed as Exhibit 4.1 to the Company's
Current Report on Form 8-K dated February 15, 1996
and incorporated herein by reference).
4.2 First Supplemental Indenture dated as of February 15,
1996 (filed as Exhibit 4.2 to the Company's Current
Report on Form 8-K dated February 15, 1996 and
incorporated herein by reference).
4.3 Form of Camden Property Trust 7% Note due April 20,
2004.
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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 21, 1999
CAMDEN PROPERTY TRUST
By: /s/ G. Steven Dawson
------------------------------------------
G. Steven Dawson
Senior Vice President - Finance, Chief
Financial Officer, Treasurer and Secretary
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CAMDEN PROPERTY TRUST
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
- ------- -----------
<S> <C>
1.1 Form of Underwriting Agreement among the Company
and the Underwriters dated April 15, 1999 relating
to the Notes Offering.
4.1 Indenture dated as of February 15, 1996 between
the Company and U.S. Trust Company of Texas,
N.A., as trustee (filed as Exhibit 4.1 to the
Company's Current Report on Form 8-K dated
February 15, 1996 and incorporated herein by
reference).
4.2 First Supplemental Indenture dated as of February
15, 1996 (filed as Exhibit 4.2 to the Company's
Current Report on Form 8-K dated February 15,
1996 and incorporated herein by reference).
4.3 Form of Camden Property Trust 7% Note due April
15, 2004.
</TABLE>
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EXHIBIT 1.1
CAMDEN PROPERTY TRUST
Debt Securities
Underwriting Agreement
$200,000,000
7% Notes
due 2004
April 15, 1999
CHASE SECURITIES INC.
J.P. MORGAN SECURITIES INC.
NATIONSBANC MONTGOMERY SECURITIES LLC
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
WARBURG DILLON READ LLC
c/o J.P. Morgan Securities Inc.
60 Wall Street, 3rd Floor
New York, NY 10260
Ladies and Gentlemen:
Camden Property Trust, a Texas real estate investment trust (the
"Company"), proposes to issue and sell to the underwriters named in Schedule I
hereto (the "Underwriters") the principal amount of its debt securities
identified in Schedule I hereto (the "Securities"), to be issued under the
indenture specified in Schedule I hereto (including the Supplemental Indenture
referred to in Schedule I, the "Indenture") between the Company and the Trustee
identified in such Schedule (the "Trustee").
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement (the file number of which is set forth in Schedule I hereto) on Form
S-3, relating to certain securities (the "Shelf Securities") to be issued from
time to time by the Company. The Company also has filed with, or proposes to
file with, the Commission pursuant to Rule 424 under the Securities Act a
prospectus supplement specifically relating to the Securities. The registration
statement as amended to the date of this Agreement is hereinafter referred to as
the "Registration Statement" and the related prospectus covering the Shelf
Securities in the form first used to confirm sales of the Securities is
hereinafter referred to as the "Base Prospectus." The Base Prospectus as
supplemented by the prospectus supplement specifically relating to the
Securities in the form first used to confirm sales of the Securities is
hereinafter referred to as the "Prospectus." Any reference in this Agreement to
the Registration Statement, the Base Prospectus, any preliminary form of
Prospectus (a "preliminary prospectus")
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previously filed with the Commission pursuant to Rule 424 or the Prospectus
shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Securities Act which were
filed under the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Exchange Act") on
or before the date of this Agreement or the date of the Base Prospectus, any
preliminary prospectus or the Prospectus, as the case may be; and any reference
to "amend," "amendment" or "supplement" with respect to the Registration
Statement, the Base Prospectus, any preliminary prospectus or the Prospectus
shall be deemed to refer to and include any filing of documents under, or any
documents filed under, the Exchange Act after the date of this Agreement, or the
date of the Base Prospectus, any preliminary prospectus or the Prospectus, as
the case may be, which are deemed to be incorporated by reference therein.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities to the several
Underwriters as hereinafter provided, and each Underwriter, on the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees to purchase, severally and not jointly, from the
Company the principal amount of Securities at the purchase price set forth in
Schedule I hereto plus accrued interest, if any, from the date specified in
Schedule I hereto to the date of payment and delivery.
2. The Company understands that the Underwriters intend (i) to make a
public offering of the Securities and (ii) initially to offer the Securities
upon the terms set forth in the Prospectus.
3. Payment for the Securities shall be made to the Company or to its
order in immediately available funds on the date and at the time and place set
forth in Schedule I hereto (or at such other time and place on the same or such
other date, not later than the third Business Day thereafter, as the
Underwriters and the Company may agree in writing). Such payment will be made
upon delivery to such Underwriters of the Securities registered in such names
and in such denominations as the Underwriters shall request not less than one
full Business Day prior to the date of delivery, with any transfer taxes payable
in connection with transfer to the Underwriters duly paid by the Company. As
used herein, the term "Business Day" means any day other than a day on which
banks are permitted or required to be closed in New York City. The time and date
of such payment and delivery with respect to the Securities are referred to
herein as the Closing Date. The certificates for the Securities will be made
available for inspection and packaging by the Underwriters by 1:00 P.M. on the
Business Day prior to the Closing Date at such place in New York City as the
Underwriters and the Company shall agree.
4. The Company represents and warrants to each Underwriter as of the
date hereof and as of the Closing Date that:
(a) the Registration Statement has been declared effective by
the Commission under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of
the Company, threatened by the Commission; and the Registration
Statement and Prospectus (as amended or supplemented if the Company
shall have
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furnished any amendments or supplements thereto) comply, or will
comply, as the case may be, in all material respects with the
Securities Act and the Trust Indenture Act of 1939, as amended, and the
rules and regulations of the Commission thereunder (collectively, the
"Trust Indenture Act"); and the Registration Statement does not and
will not, as of its applicable effective date and any amendment thereto
and at the date hereof and at the Closing Date, contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, not misleading, and the Prospectus, as amended or supplemented
at the Closing Date and any amendment or supplement to the Prospectus
thereafter, if applicable, will not contain any 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 representations
and warranties shall not apply to (i) that part of the Registration
Statement which constitutes the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee,
and (ii) statements or omissions in the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by such
Underwriter expressly for use therein, and the Company acknowledges
(for the purposes of this paragraph (a) and anywhere else in this
Agreement where a reference appears to writings furnished by the
Underwriters to the Company) that the statements set forth in the
second sentence of the third paragraph and the fourth and sixth
paragraphs under the heading "Underwriting" in the Prospectus
constitute the only information relating to any Underwriter furnished
in writing to the Company by the Underwriters specifically for
inclusion in the Registration Statement;
(b) the documents incorporated by reference in the Prospectus,
when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act, and none of such
documents contained 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 any further documents so filed and incorporated by
reference in the Prospectus, when such documents are filed with the
Commission will conform in all material respects to the requirements of
the Exchange Act, as applicable, and will not contain 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; and there are no contracts or
documents which are required to be described in the Registration
Statement, the Prospectus or the documents incorporated by reference
therein or to be filed as exhibits thereto which have not been so
described and filed as required;
(c) the financial statements and the related notes thereto,
included or incorporated by reference in the Registration Statement and
the Prospectus, present fairly the financial position of the Company as
of the dates indicated and the results of its operations and the
changes in its cash flows for the periods specified; the foregoing
financial statements have been prepared in conformity with generally
accepted accounting principles ("GAAP") applied on a consistent basis,
and the supporting schedules included or incorporated by reference in
the Registration Statement or the Prospectus present fairly the
information required to be stated therein; the summary financial and
statistical data included or incorporated by reference in the
Registration Statement or the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with the
financial statements presented therein; no other financial statements
(or schedules) of the Company, any predecessor of the Company or any
other entity or business are required by the Securities Act to be
included in the Registration Statement or the
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Prospectus; any historical summaries of revenue and certain operating
expenses included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the revenue and those
operating expenses included in such summaries of the properties related
thereto for the periods specified in conformity with GAAP; and pro
forma financial statements of the Company and its Subsidiaries and the
related notes thereto included in the Registration Statement and the
Prospectus, if any, 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 bases 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;
(d) since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general
affairs, business, prospects, management, properties, financial
position, shareholders' equity or results of operations of the Company
or any of its Subsidiaries (as hereinafter defined); and except as set
forth or contemplated in the Prospectus neither the Company nor any of
its Subsidiaries has incurred any liabilities or obligations, direct or
contingent, or entered into any transaction or agreement (whether or
not in the ordinary course of business) material to the Company and its
Subsidiaries as a whole;
(e) the Company has been duly formed and is validly existing
as a real estate investment trust with transferable shares of
beneficial interest under the laws of the State of Texas, with power
and authority to own or lease its properties and conduct its business
as described in the Prospectus, and is qualified for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification, other than where the
failure to be so qualified or in good standing would not have a
material adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Company and
its Subsidiaries taken as a whole; except for investments in securities
as described in the Registration Statement or Prospectus, the Company
has no equity or other interest in, or rights to acquire, an equity or
other interest in any corporation, partnership, trust, joint venture or
other entity; the subsidiary entities of the Company identified on
Schedule II hereto (the "Subsidiaries") are all of the Company's
Subsidiaries, have full power and authority to conduct their business
as described in the Registration Statement and the Prospectus, have
been duly organized and are validly existing as corporations, limited
partnerships or limited liability companies, as the case may be, in
good standing under the laws of their states of organization, and have
been
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duly qualified as foreign corporations, limited partnerships or limited
liability companies, as the case may be, for the transaction of
business and are in good standing under the laws of each other
jurisdiction in which they own or lease properties, or conduct any
business, so as to require such qualification, other than where the
failure to be so qualified or in good standing would not have a
material adverse effect on the Company and its Subsidiaries taken as a
whole; except for investments in securities as described in the
Registration Statement or Prospectus, or ownership of interests of
lower tier Subsidiaries, the Subsidiaries have no equity or other
interest in, or rights to acquire, an equity or other interest in any
corporation, partnership, trust, joint venture or other entity; the
Subsidiaries of the Company that are "significant subsidiaries" (as
defined in Rule 102(w) of Regulation S-X) are identified on Schedule II
hereto and complete and correct copies of the charter documents and the
by-laws, if any, of such Subsidiaries and all amendments thereto have
been previously made available or delivered to the Underwriters, and no
changes therein will have been made subsequent to the date hereof and
prior to the Closing Date; all of the issued and outstanding capital
stock of each Subsidiary that is a corporation or similar entity has
been duly authorized and validly issued, is fully paid and
nonassessable and, except as otherwise indicated on Schedule II hereto,
is owned by the Company, directly or through Subsidiaries, free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or restriction;
(f) the Company has full power and authority to enter into
this Agreement and the Indenture and to issue, offer and sell the
Securities as contemplated by this Agreement; this Agreement and the
Indenture have been duly authorized, executed and delivered by the
Company and constitute the valid and legally binding obligations of the
Company enforceable in accordance with their terms, except that the
enforceability thereof may be limited by or subject to (i) bankruptcy,
reorganization, insolvency, fraudulent conveyance, moratorium or other
similar laws now or hereafter existing which affect the rights and
remedies of creditors generally and (ii) equitable principles of
general applicability, and except as rights to indemnity and
contribution hereunder may be limited by applicable law;
(g) the Securities have been duly authorized, and, when
issued, authenticated and delivered pursuant to this Agreement and the
Indenture will have been duly and validly executed, authenticated,
issued and delivered and will constitute valid and binding obligations
of the Company entitled to the benefits provided by the Indenture and
enforceable in accordance with their terms, except that the
enforceability thereof may be limited by or subject to (i) bankruptcy,
reorganization, insolvency, fraudulent conveyance, moratorium or other
similar laws now or hereafter existing which affect the rights and
remedies of creditors generally and (ii) equitable principles of
general applicability and except as rights to indemnity and
contribution hereunder may be limited by applicable law; the Indenture
has been duly authorized and has been duly qualified under the Trust
Indenture Act, has been duly and validly executed and delivered by the
Company and the Trustee, and constitutes a valid and binding instrument
enforceable in accordance with its terms; and the Securities and the
Indenture will conform to the statements relating thereto contained in
the Prospectus;
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(h) neither the Company nor the Subsidiaries are, nor with the
giving of notice or lapse of time or both would be, in violation of or
in default under, their respective Declaration of Trust, Articles of
Incorporation, By-Laws, limited partnership or limited liability
company agreement or any indenture, mortgage, deed of trust, loan
agreement or other agreement or other instrument or obligation to which
the Company or any Subsidiary is a party or by which they or any of
their properties are bound, except for violations and defaults which
individually and in the aggregate are not material to the Company or to
the holders of the Securities; the issue and sale of the Securities and
the performance by the Company of all of the provisions of its
obligations under the Securities, the Indenture and this Agreement and
the consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other material agreement or instrument
to which the Company or any Subsidiary is a party or by which the
Company or any Subsidiary is bound or to which any of the property or
assets of the Company or any Subsidiary is subject, nor will any such
action result in any violation of the provisions of the Declaration of
Trust or the By-Laws of the Company or any applicable law or statute or
any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its properties; and
no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required for the issue and sale of the Securities or the
consummation by the Company of the transactions contemplated by this
Agreement or the Indenture, except such consents, approvals,
authorizations, registrations or qualifications as have been obtained
under the Securities Act, the Trust Indenture Act and as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters;
(i) other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened to which the Company or any
Subsidiary is or may be a party or to which any property of the Company
or any Subsidiary is or may be the subject which, if determined
adversely to the Company, could individually or in the aggregate
reasonably be expected to have a material adverse effect on the general
affairs, business, prospects, management, properties, financial
position, shareholders' equity or results of operations of the Company
and, to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others; and there are no contracts or other documents of a character
required to be filed as an exhibit to the Registration Statement or
required to be described in the Registration Statement or the
Prospectus which are not filed or described as required;
(j) the Company and the Subsidiaries have indefeasible title
to all of the real properties and assets reflected in the financial
statements (or as described in the Registration Statement) hereinabove
described, subject to no lien, mortgage, pledge, charge or encumbrance
of any kind except those reflected in such financial statements (or as
described in the Registration Statement) or which are not material in
amount and which do not materially affect the value of such property or
materially interfere with the
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use made or proposed to be made of such property by the Company or any
of the Subsidiaries; the Company and the Subsidiaries occupy their
leased properties under valid and binding leases conforming to the
description thereof set forth in the Registration Statement;
(k) the Company has filed all Federal, State 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 and are not being
contested in good faith;
(1) the Company and the Subsidiaries hold all material
licenses, certificates and permits from governmental authorities which
are necessary to the conduct of their business;
(m) Deloitte & Touche LLP, who have certified certain of the
financial statements filed with the Commission as part of, or
incorporated by reference in, the Registration Statement, are
independent public accountants as required by the Securities Act;
(n) the Company has never been, is not now, and immediately
after the sale of the Securities under this Agreement will not be, an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended; the Company is organized, and has operated,
operates and will continue to operate in a manner so as to qualify as a
"real estate investment trust" (a "REIT") under Sections 856 through
860 of the Internal Revenue Code of 1986, as amended, and the Company's
present and contemplated operations, assets and income continue to meet
such requirements;
(o) the conditions for the use of a registration statement on
Form S-3 set forth in the General Instructions on Form S-3 have been
satisfied and the Company is entitled to use such form for the
transactions contemplated herein;
(p) with respect to the properties of the Company described in
the Prospectus or reflected in the Company's consolidated financial
statements included or incorporated by reference therein (the
"Properties"), the Company and its Subsidiaries (i) are in compliance
with any and all applicable foreign, Federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have obtained all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are
in compliance with all terms and conditions of any such permit, license
or approval, except where such noncompliance with Environmental Laws,
failure to obtain required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits,
licenses or approvals are otherwise disclosed in the Prospectus or
would not, singly or in the aggregate, have a material adverse effect
on the condition (financial or other), business (affairs or other),
prospects, earnings, net worth or results of operation of the Company
and the Subsidiaries taken as a whole; and
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(i) none of the Company or the Subsidiaries has at
any time, and, to the knowledge of the Company, no other party
has at any time, handled, buried, stored, retained, refined,
transported, processed, manufactured, generated, produced,
spilled, allowed to seep, leak, escape or leach, or be pumped,
poured, emitted, emptied, discharged, injected, dumped,
transferred or otherwise disposed of or dealt with, Hazardous
Materials (as hereinafter defined) on, to or from the
Properties, other than any such action taken in compliance
with all applicable Environmental Laws or by tenants in
connection with the ordinary use of residential properties
owned by the Company or the Subsidiaries; the Company does not
intend to use the Properties or any subsequently acquired
properties described in the Prospectus for the purpose of
handling, burying, storing, retaining, refining, transporting,
processing, manufacturing, generating, producing, spilling,
seeping, leaking, escaping, leaching, pumping, pouring,
emitting, emptying, discharging, injecting, dumping,
transferring or otherwise disposing of or dealing with
Hazardous Materials other than in compliance with all
applicable Environmental Laws; and
(ii) the Company does not know of any seepage, leak,
escape, leaching, discharge, injection, release, emission,
spill, pumping, pouring, emptying or dumping of Hazardous
Materials into waters on or adjacent to the Properties or onto
lands from which such hazardous or toxic waste of substances
might seep, flow or drain into such waters; and
(iii) neither the Company nor any of the Subsidiaries
has received notice of, or has knowledge of any occurrence or
circumstance which, with notice or passage of time or both,
would give rise to, any claim under or pursuant to any
Environmental Law pertaining to Hazardous Material or toxic
waste or substances on or originating from the Properties or
arising out of the conduct of any such party, including,
without limitation, pursuant to any Environmental Law;
as used herein, "Hazardous Material" shall include,
without limitation, any flammable explosives, radioactive
materials, hazardous materials, hazardous wastes, hazardous or
toxic substances, or related materials, asbestos or any
material as defined by any Federal, state or local
environmental law, ordinance, rule, or regulation including,
without limitation, Environmental Laws, the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980, as amended (42 U.S.C. Section 9601, et seq.) ("CERCLA"),
the Hazardous Materials Transportation Act, as amended (49
U.S.C. Section 1801, et seq.), the Resource Conservation and
Recovery Act, as amended (42 U.S.C. Section 9601, et seq.),
and in the regulations adopted and publications promulgated
pursuant to each of the foregoing or by any Federal, state or
local governmental authority having or claiming jurisdiction
over the Properties as described in the Prospectus.
(q) the Company has complied with all provisions of Article
6138A of the Texas Civil Statutes;
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(r) none of the assets of the Company or the Subsidiaries
constitute, nor will such assets, as of the Closing Date, constitute,
"plan assets" under the Employee Retirement Income Security Act of
1974, as amended ("ERISA");
(s) the Company has not distributed and, prior to the later to
occur of (i) the Closing Date and (ii) completion of the distribution
of the Securities, will not distribute any offering material in
connection with the offering and sale of the Securities other than the
Registration Statement, the Prospectus or other materials, if any,
permitted by the Securities Act;
(t) the Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets; (iii) access to financial and corporate books and records is
permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences;
(u) all liens, charges, encumbrances, claims or restrictions
on or affecting the Properties which are required to be disclosed in
the Prospectus are disclosed therein; to the knowledge of the Company,
(i) no lessee of any portion of any of the Properties is in default
under any of the leases governing such properties and there is no event
which, but for the passage of time or the giving of notice, or both,
would constitute a default under any of such leases, except such
defaults that would not have a material adverse effect on the condition
(financial or other), business, prospects, net worth or results of
operations of the Company and the Subsidiaries taken as a whole; (ii)
the intended use and occupancy of each of the Properties complies with
all applicable codes and zoning laws and regulations, if any, except
for such failures to comply which would not individually or in the
aggregate have a material adverse effect on the condition (financial or
other), business prospects, net worth or results of operations of the
Company and the Subsidiaries taken as a whole; and (iii) there is no
pending or, to the best knowledge of the Company, threatened
condemnation, zoning change, environmental or other proceeding or
action that will in any material respect affect the size of, use of,
improvements on, construction on, or access to the Properties, except
such proceedings or actions that would not have a material adverse
effect on the condition (financial or other), business, prospects, net
worth or results of operations of the Company and the Subsidiaries
taken as a whole;
(v) the Company, has and will maintain, property and casualty
insurance in favor of the Company and the Subsidiaries, as the case may
be, with respect to each of the Properties, in an amount and on such
terms as is reasonable and customary for businesses of the type
proposed to be conducted by the Company and the Subsidiaries;
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the Company has not received from any insurance company written notice
of any material defects or deficiencies affecting the insurability of
any such Properties; and
(w) any certificate signed by any officer of the Company and
delivered to the Underwriters or to counsel for the Underwriters in
connection with the offering of the Securities shall be deemed a
representation and warranty by the Company to the Underwriters as to
the matters covered thereby on the date of such certificate.
5. The Company covenants and agrees with the several Underwriters as
follows:
(a) to file the Prospectus (but only if the Underwriters have
not reasonably objected thereto by notice to the Company after having
been furnished a copy in reasonable time prior to filing) pursuant to
Rule 424 under the Securities Act not later than the Commission's close
of business on the second Business Day following the date of
determination of the offering price of the Securities;
(b) to deliver to each Underwriter and counsel for the
Underwriters, at the expense of the Company, a copy of the signed
Registration Statement (as originally filed) and each amendment
thereto, in each case including exhibits and, upon request, documents
incorporated by reference therein and, during the period mentioned in
paragraph (e) below, as many copies of the Prospectus (including all
amendments and supplements thereto) and documents incorporated by
reference therein as the Underwriters may reasonably request, when
filed with the Commission; and that each such Prospectus will, at the
time of such delivery, be identical to any electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to
the extent permitted by Regulation S-T.
(c) from the date hereof and during such period after the
first date of the public offering of the Securities that, in the
opinion of counsel for the Underwriters, a prospectus relating to the
Securities is required by law to be delivered in connection with sales
by an Underwriter or a dealer, to furnish to the Underwriters a copy of
any proposed amendment or supplement to the Registration Statement or
the Prospectus, for the Underwriters' review, and not to file any such
proposed amendment or supplement to which the Underwriters reasonably
object;
(d) to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities, and during such
same period, to advise the Underwriters promptly, and to confirm such
advice in writing, (i) when any amendment to the Registration Statement
shall have become effective, (ii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for any additional information, (iii)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation or
threatening of any proceeding for that purpose, and (iv) of the receipt
by the Company of any notification with respect to any suspension
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<PAGE> 11
of the qualification of the Securities for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose; and to use its best efforts to prevent the issuance of
any such stop order or notification and, if issued, to obtain as soon
as possible the withdrawal thereof;
(e) if, during such period after the first date of the public
offering of the Securities, in the opinion of counsel for the
Underwriters, a prospectus relating to the Securities is required by
law to be delivered in connection with sales by an Underwriter or a
dealer, any event shall occur as a result of which it is necessary to
amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus to comply with law, forthwith to
prepare and, subject to Section 5(c), furnish, at the expense of the
Company, to the Underwriters and to the dealers (whose names and
addresses the Underwriters will furnish to the Company) to which
Securities may have been sold by the Underwriters and to any other
dealers upon request, such amendments or supplements to the Prospectus
as may be necessary so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances
when the Prospectus is delivered to a purchaser, be misleading or so
that the Prospectus will comply with law;
(f) to endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the
Underwriters shall reasonably request and to continue such
qualification in effect so long as reasonably required for distribution
of the Securities and to pay all fees and expenses (including fees and
disbursements of counsel to the Underwriters) reasonably incurred in
connection with such qualification and in connection with the
determination of the eligibility of the Securities for investment under
the laws of such jurisdictions as the Underwriters may designate;
provided that the Company shall not be required to file a general
consent to service of process in any jurisdiction;
(g) to make generally available to its security holders and to
the Underwriters as soon as practicable but not later than 15 months
after the effective date of the Registration Statement (as defined in
Rule 158(c)) an earnings statement covering a period of at least twelve
months beginning with the first fiscal quarter of the Company occurring
after the effective date of the Registration Statement, which shall
satisfy the provisions of Section 11 (a) of the Securities Act and Rule
158 of the Commission promulgated thereunder;
(h) so long as the Securities are outstanding, to furnish to
the Underwriters copies of all reports or other communications
(financial or other) furnished to holders of Securities, and copies of
any reports and financial statements furnished to or filed with the
Commission or any national securities exchange;
(i) during the period beginning on the date hereof and
continuing to and including the Business Day following the Closing
Date, not to offer, sell, contract to sell
11
<PAGE> 12
or otherwise dispose of any debt securities of or guaranteed by the
Company which are substantially similar to the Securities without the
Underwriters' prior written consent; and
(j) to pay all costs and expenses incident to the performance
of its obligations hereunder, including without limiting the generality
of the foregoing, all costs and expenses (i) incident to the
preparation, issuance, execution, authentication and delivery of the
Securities, including any expenses of the Trustee, (ii) incident to the
preparation, printing and filing under the Securities Act of the
Registration Statement, the Prospectus and any preliminary prospectus
(including in each case all exhibits, amendments and supplements
thereto), (iii) incurred in connection with the registration or
qualification and determination of eligibility for investment of the
Securities under the laws of such jurisdictions as the Underwriters may
designate (including reasonable fees of counsel for the Underwriters
and their disbursements), (iv) related to any filing with National
Association of Securities Dealers, Inc., (v) in connection with the
printing (including word processing and duplication costs) and delivery
of this Agreement, the Indenture, the Preliminary and Supplemental Blue
Sky Memoranda and any Legal Investment Survey and the furnishing to the
Underwriters and dealers of copies of the Registration Statement and
the Prospectus, including mailing and shipping, as herein provided and
(vi) payable to rating agencies in connection with the rating of the
Securities; except as provided in clause (iii) above or in Section 7 or
in Section 10 hereof, the Company shall not be obligated to pay the
fees of counsel for the Underwriters and their disbursements.
6. The obligations of the several Underwriters hereunder shall be
subject to the following conditions:
(a) the representations and warranties of the Company
contained herein are true and correct on and as of the Closing Date as
if made on and as of the Closing Date and the Company shall have
complied with all agreements and all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date;
(b) the Prospectus shall have been filed with the Commission
pursuant to Rule 424 within the applicable time period prescribed for
such filing by the rules and regulations under the Securities Act; no
stop order suspending the effectiveness of the Registration Statement
shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to the Underwriters' satisfaction;
(c) subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have occurred any
downgrading, nor shall any notice have been given of (i) any intended
or potential downgrading or (ii) any review or possible change that
indicates anything other than a stable outlook, in the rating accorded
any securities of or guaranteed by the Company by any "nationally
recognized statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act; and the
Securities shall in no event be rated less than BBB- by Standard
12
<PAGE> 13
and Poor's Ratings Services, BBB- by Duff & Phelps Credit Rating Co.
and Baa3 by Moody's Investors Service, Inc.
(d) since the respective dates as of which information is
given in the Prospectus there shall not have been any material adverse
change or any development involving a material adverse change, in or
affecting the general affairs, business, prospects, management,
properties, financial position, shareholders' equity or results of
operations of the Company and its Subsidiaries, taken as a whole, the
effect of which in the judgment of the Underwriters makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner contemplated
in the Prospectus;
(e) the Underwriters shall have received on and as of the
Closing Date a certificate satisfactory to the Underwriters, of the
President or the Chief Executive Officer and the Chief Financial
Officer, or such other senior executive officer or officers of the
Company as are satisfactory to the Underwriters, to the effect set
forth in subsections (a) through (c) of this Section and to the further
effect that there has not occurred any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, business, prospects, management,
properties, financial position, shareholders' equity or results of
operations of the Company and its Subsidiaries taken as a whole from
that set forth or contemplated in the Registration Statement;
(f) Locke Liddell & Sapp LLP, counsel for the Company, shall
have furnished to the Underwriters its written opinion, dated the
Closing Date, in form and substance satisfactory to the Underwriters,
to the effect that:
(i) the Company has been duly organized and is
validly existing as a real estate investment trust under the
laws of the State of Texas, with power and authority to own
its properties and conduct its business as described in the
Prospectus as then amended or supplemented;
(ii) the Company is qualified for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification,
other than where the failure to be so qualified or in good
standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its
Subsidiaries taken as a whole;
(iii) the Subsidiaries have been duly organized and
are validly existing as corporations, limited partnerships or
limited liability companies, as the case may be, in good
standing under the laws of their jurisdictions of
organization, with power and authority to own their properties
and conduct their business as described in the Prospectus as
amended or supplemented; except as disclosed in the
Registration Statement or the Prospectus, the Company owns no
capital stock
13
<PAGE> 14
or other beneficial interest in any corporation, partnership,
trust, joint venture or other business entity; and except as
otherwise stated in the Registration Statement and the
Prospectus, all of the issued and outstanding capital stock or
other ownership interests of each Subsidiary that is a
corporation or similar entity have been duly authorized and
are validly issued, are fully paid and non-assessable and, to
the best of the knowledge of such counsel, are owned by the
Company, directly or through Subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance or
claim;
(iv) the Subsidiaries have been duly qualified as
foreign corporations for the transaction of business and are
in good standing under the laws of each other jurisdiction in
which they own or lease properties, or conduct any business,
so as to require such qualification, other than where the
failure to be so qualified or in good standing would not have
a material adverse effect on the Company and its Subsidiaries
taken as a whole;
(v) other than as set forth or contemplated in the
Prospectus, there are no legal or governmental proceedings
pending or, to the best of such counsel's knowledge,
threatened to which the Company or any of its Subsidiaries is
or may be a party or to which any property of the Company or
any of its Subsidiaries is or may be the subject which, if
determined adversely to the Company or such Subsidiary, could
individually or in the aggregate reasonably be expected to
have a material adverse effect on the general affairs,
business, prospects, management, properties, financial
position, shareholders' equity or results of operations of the
Company and its Subsidiaries taken as a whole; to the best of
such counsel's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by
others; and such counsel does not know of any contracts or
other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be
described in the Registration Statement or the Prospectus
which are not filed or incorporated by reference from another
filing with the Commission or described as required;
(vi) this Agreement has been duly authorized,
executed and delivered by the Company and is a valid and
binding agreement of the Company on the date hereof, except as
rights to indemnity and contribution hereunder may be limited
by applicable law;
(vii) the Securities have been duly authorized, and
when executed and authenticated in accordance with the terms
of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement,
will constitute valid and binding obligations of the Company
entitled to the benefits provided by the Indenture,
enforceable in accordance with their terms, except that the
enforceability thereof may be limited by or be subject to (a)
bankruptcy, reorganization, insolvency, fraudulent conveyance,
moratorium or other similar laws now or hereafter existing
which affect the rights and remedies of creditors generally
and (b) equitable principles of general applicability;
14
<PAGE> 15
(viii) the Indenture has been duly authorized,
executed and delivered by the Company and constitutes a valid
and binding instrument of the Company enforceable in
accordance with its terms, except that the enforceability
thereof may be limited by or be subject to (a) bankruptcy,
reorganization, insolvency, fraudulent conveyance, moratorium
or other similar laws now or hereafter existing which affect
the rights and remedies of creditors generally and (b)
equitable principles of general applicability; and the
Indenture has been duly qualified under the Trust Indenture
Act;
(ix) to the best of such counsel's knowledge, neither
the Company nor the Subsidiaries are, nor with the giving of
notice or lapse of time or both would be, in violation of or
in default under, their respective Declarations of Trust,
Articles of Incorporation, By-Laws or limited partnership or
limited liability company agreement or any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or any
of the Subsidiaries is a party or by which they or any of
their respective properties are bound, except for violations
and defaults which individually and in the aggregate are not
material to the Company or to the holders of the Securities;
the issue and sale of the Securities and the performance by
the Company of its obligations under the Securities, the
Indenture and this Agreement and the consummation of the
transactions herein and therein contemplated will not conflict
with or result in a breach of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other material agreement or
instrument known to such counsel to which the Company or any
Subsidiary is a party or by which the Company or any
Subsidiary is bound or to which any of the property or assets
of the Company or any Subsidiary is subject, nor will any such
action result in any violation of the provisions of the
Declaration of Trust or the By-Laws of the Company or any
applicable law or statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction
over the Company or any of its properties;
(x) the Company has authorized and outstanding shares
of beneficial interest as set forth under the caption
"Capitalization" in the Prospectus;
(xi) no consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body is required for the issue and sale
of the Securities or the consummation of the other
transactions contemplated by this Agreement or the Indenture,
except such consents, approvals, authorizations, registrations
or qualifications as have been obtained under the Securities
Act and the Trust Indenture Act and as may be required under
state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the
Underwriters;
15
<PAGE> 16
(xii) the statements in the Base Prospectus under the
captions "Description of Common Shares," "Description of
Preferred Shares," "Description of Securities Warrants," and
"Description of Debt Securities," and the statements in the
Prospectus under the caption "Description of the Notes," and
other statements in the Prospectus and each document
incorporated by reference from the Company's Annual Report on
Form 10-K for the year ended December 31, 1998 and in the
Registration Statement insofar as such statements constitute a
summary of the legal matters, documents or proceedings
referred to therein, in each case fairly present the
information called for with respect to such legal matters,
documents or proceedings; the descriptions in the Registration
Statement and Prospectus of contracts and other documents
which are filed as exhibits to the Registration Statement are
accurate in all material respects and fairly present the
information required to be shown; and to such counsel's
knowledge there are no statutes or legal or governmental
proceedings required to be described in the Prospectus that
are not described as required;
(xiii) the Company is not, and will not become as a
result of the consummation of the transactions contemplated by
this Agreement, an "investment company" within the meaning of
the Investment Company Act of 1940, as amended, and has not
been an "investment company" at any time since 1988;
(xiv) to such counsel's knowledge, with the exception
of the Registration Rights Agreement dated April 15, 1997,
between the Company, Camden Operating, L.P., and certain
listed investors therein, the Registration Rights Agreement
dated as of April 6, 1998 among Oasis Residential, Inc., ISCO
and IFT Properties, Ltd., and the Registration Rights
Agreement dated as of April 2, 1998 between Oasis Residential,
Inc. and Merrill Lynch Private Finance Limited, there are no
contracts, agreements or understandings between the Company
and any person granting such person the right to require the
Company to file a registration statement under the Securities
Act with respect to any securities of the Company owned by
such person, or to require the Company to register such
securities pursuant to the Registration Statement;
(xv) the Registration Statement has become effective
under the Securities Act; any required filing of the
Prospectus under Rule 424 under the Securities Act has been
made; to the best knowledge of such counsel 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;
(xvi) such counsel (A) is of the opinion that each
document incorporated by reference in the Registration
Statement and the Prospectus (except for the financial
statements included therein as to which such counsel need
express no opinion) complied as to form in all material
respects with the Exchange Act when filed with Commission, (B)
believes that (except for the financial statements
16
<PAGE> 17
included therein as to which such counsel need express no
belief) each part of the Registration Statement (including the
documents incorporated by reference therein) filed with the
Commission pursuant to the Securities Act relating to the
Securities, when such part became effective, did 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, (C) is of the
opinion that the Registration Statement and the Prospectus and
any amendments and supplements thereto (except for the
financial statement included therein as to which such counsel
need express no opinion) comply as to form in all material
respects with the requirements of the Securities Act and the
Trust Indenture Act and (D) believes that (except for the
financial statements included therein as to which such counsel
need express no belief) the Registration Statement and the
Prospectus, on the date of this Agreement, did not contain any
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, and that the
Prospectus as amended or supplemented, if applicable, does not
contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading.
In rendering such opinions, such counsel may rely (A) as to
matters involving the application of laws other than the laws of the
United States and the State of Texas, to the extent such counsel deems
proper and to the extent specified in such opinion, if at all, upon an
opinion or opinions (in form and substance reasonably satisfactory to
the Underwriters' counsel) of other counsel reasonably acceptable to
the Underwriters' counsel, familiar with the applicable laws; (B) as to
matters of fact, to the extent such counsel deems proper, on
certificates of responsible officers of the Company and certificates or
other written statements of officials of jurisdictions having custody
of documents respecting the corporate existence or good standing of the
Company. The opinion of such counsel for the Company shall state that
the opinion of any such other counsel is in form satisfactory to such
counsel and, in such counsel's opinion, the Underwriters and they are
justified in relying thereon. With respect to the matters to be covered
in subparagraph (xvi) above counsel may state its opinion and belief is
based upon their participation in the preparation of the Registration
Statement and the Prospectus and any amendment or supplement thereto
(other than the documents incorporated by reference therein) and review
and discussion of the contents thereof (including the documents
incorporated by reference therein) but is without independent check or
verification except as specified.
(g) Locke Liddell & Sapp LLP, tax counsel for the Company,
shall have delivered to the Underwriters its written opinion, dated the
Closing Date, in form and substance satisfactory to the Underwriters,
to the effect that:
(i) the Company met the requirements for
qualification and taxation as a real estate investment trust
("REIT") for the taxable years 1993 through 1998;
17
<PAGE> 18
(ii) the Company's diversity of equity ownership and
proposed method of operation should allow it to qualify as a
REIT for its 1999 taxable year; and
(iii) the discussion contained under the caption
"Material Federal Income Tax Considerations" in the Prospectus
forming a part of the Registration Statement, accurately
reflects existing law and fairly addresses the material
federal income tax issues described therein.
In rendering such opinions, Locke Liddell & Sapp LLP may rely
as to matters of fact, to the extent they deem proper, on certificates
of officers of the Company and public officials so long as such counsel
states that no facts have come to the attention of such counsel which
lead them to believe that they are not justified in relying on such
certificates. In addition, Locke Liddell & Sapp LLP may state that
their opinions are based upon the procedures and assumptions set forth
in such opinion letter and that it is limited to the tax matters
specifically covered thereby and that they have not addressed any other
tax consequences.
(h) concurrently with the execution and delivery of this
Agreement, or on the Closing Date prior to payment and delivery of the
Securities, Deloitte & Touche LLP shall have furnished to the
Underwriters a letter, dated the date of its delivery, addressed to the
Underwriters and in form and substance satisfactory to the
Underwriters, confirming that they are independent accountants with
respect to the Company as required by the Securities Act and the rules
and regulations thereunder and with respect to the financial and other
statistical and numerical information contained in the Registration
Statement and the Prospectus or incorporated by reference therein. Such
letter shall contain information of the type customarily included in
accountants' comfort letters to underwriters. If such letter is
delivered as of the date of this Agreement, then at the Closing Date,
Deloitte & Touche LLP shall have furnished to the Underwriters a
letter, dated the date of its delivery, which shall confirm, on the
basis of a review in accordance with the procedures set forth in such
letter, that nothing has come to their attention during the period from
the date of the letter referred to in the prior sentence to a date
(specified in the letter) not more than three days prior to the Closing
Date which would require any change in their letter dated the date
hereof if it were required to be dated and delivered at the Closing
Date;
(i) the Underwriters shall have received on and as of the
Closing Date an opinion of Brown & Wood LLP, counsel for the
Underwriters, with respect to the validity of the Indenture and the
Securities, the Registration Statement, the Prospectus and other
related matters as the Underwriters may reasonably request, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters; and
(j) on or prior to the Closing Date, the Company shall have
furnished to the Underwriters such further certificates and documents
confirming the representations and warranties contained herein and
related matters as the Underwriters shall reasonably request.
18
<PAGE> 19
The opinions and certificates mentioned in this Agreement shall be
deemed to be in compliance with the provisions hereof only if they are in all
material respects satisfactory to the Underwriters and their counsel.
7. The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act, from
and against any and all losses, claims, damages and liabilities (including
without limitation the reasonable legal fees and other expenses (including
expenses of investigation and settlement) incurred in connection with any suit,
action or proceeding or any claim asserted) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with information
relating to the Underwriters furnished to the Company in writing by such
Underwriter expressly for use therein; provided, that the foregoing indemnity
with respect to any preliminary prospectus shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such Underwriter) if
such untrue statement or omission or alleged untrue statement or omission made
in such preliminary prospectus is eliminated or remedied in the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) and, if required by law, a copy of the Prospectus (as so
amended or supplemented) shall not have been furnished to such person asserting
any such losses, claims, damages or liabilities at or prior to the written
confirmation of the sale of such Securities to such person.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its trust managers, its officers who sign the
Registration Statement and each person who controls the Company within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act,
to the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to information relating to such Underwriter
furnished to the Company in writing by such Underwriter expressly for use in the
Registration Statement, the Prospectus, any amendment or supplement thereto, or
any preliminary prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel satisfactory to the Indemnified Person
to represent the Indemnified Person in such proceeding and shall pay the fees
and expenses of such counsel related to such proceeding. In any such proceeding,
any Indemnified Person shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person shall
19
<PAGE> 20
have mutually agreed to the contrary, (ii) the Indemnifying Person has failed
within a reasonable time to retain counsel satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Underwriters
and any such control persons of Underwriters shall be designated in writing by
the Underwriters and any such separate firm for the Company, its trust managers,
its officers who sign the Registration Statement and such control persons of the
Company or authorized representatives shall be designated in writing by the
Company. The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify any Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have requested an
Indemnifying Person to reimburse the Indemnified Person for fees and expenses of
counsel as contemplated by the third sentence of this paragraph, the
Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not have reimbursed
the Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the prior written consent of
the Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement (i) includes an unconditional release of such Indemnified
Person from all liability on claims that are the subject; matter of such
proceeding and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any Indemnified Person.
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and the Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. 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 respective proportions as the net proceeds from the offering
of such Securities (before deducting expenses) received by the Company and the
total underwriting discounts and the commissions
20
<PAGE> 21
received by the Underwriters bear to the aggregate public offering price of the
Securities. The relative fault of the Company on the one hand and the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
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 contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligation to
contribute pursuant to this Section 7 shall be several in proportion to their
respective underwriting commitments as set forth in Schedule I hereto and not
joint.
The indemnity and contribution agreements contained in this Section 7
are in addition to any liability which the Indemnifying Persons may otherwise
have to the Indemnified Persons referred to above.
The indemnity and contribution agreements contained in this Section 7
and the representations, warranties and covenants of the Company set forth in
this Agreement shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter or by or on
behalf of the Company, its officers or directors or any other person controlling
the Company and (iii) acceptance of and payment for any of the Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Underwriters, by notice given to
the Company, if after the execution and delivery of this Agreement and prior to
the Closing Date (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, (iii) there shall have occurred, since the
respective dates as of which information is given in the Registration Statement
and the Prospectus, any material adverse change or any development involving a
prospective material adverse change in or affecting the condition, financial or
otherwise, of the Company or the earnings, business affairs, properties,
21
<PAGE> 22
management or business prospects of the Company, whether or not arising in the
ordinary course of business, (iv) trading generally shall have been suspended or
materially limited on or by the New York Stock Exchange, (v) trading of any
securities of or guaranteed by the Company shall have been suspended on any
exchange or in any over-the-counter market, (vi) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities; (vii) there has occurred any downgrading
or notice of any intended or potential downgrading or any review or possible
change that indicates anything other than a stable outlook in the rating of the
Company's debt securities by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Exchange Act);
or (viii) there shall have occurred any outbreak or escalation of hostilities or
any change in financial markets or any calamity or crisis that, in the judgment
of the Underwriters, is material and adverse and which, in the judgment of the
Underwriters, makes it impracticable to market the Securities on the terms and
in the manner contemplated in the Prospectus.
9. If, on the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase Securities which it or they have agreed to purchase
under this Agreement, and the aggregate principal amount of Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of the
Securities, the other Underwriters shall be obligated severally in the
proportions that the principal amount of Securities set forth opposite their
respective names in Schedule I hereto bears to the aggregate principal amount of
Securities set forth opposite the names of all such non-defaulting Underwriters,
or in such other proportions as the Underwriters may specify, to purchase the
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on such date; provided that in no event shall the
principal amount of Securities that any Underwriter has agreed to purchase
pursuant to Section 1 be increased pursuant to this Section 9 by an amount in
excess of one-ninth of such principal amount of Securities without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Securities and the aggregate
principal amount of Securities with respect to which such default occurs is more
than one-tenth of the aggregate principal amount of Securities to be purchased,
and arrangements satisfactory to the Underwriters and the Company for the
purchase of such Securities are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either the
Underwriters or the Company shall have the right to postpone the Closing Date,
but in no event for longer than seven days, in order that the required changes,
if any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. Any action taken under this paragraph
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any
of them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement or any condition of the Underwriters' obligations cannot be fulfilled,
the Company agrees to reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket
22
<PAGE> 23
expenses (including the reasonable fees and expenses of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering of Securities.
11. This Agreement shall inure to the benefit of and be binding upon
the Company, the Underwriters, any controlling persons referred to herein and
their respective successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. No purchaser of Securities
from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
12. All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given if mailed or transmitted by any
standard form of telecommunication. Notices to the Underwriters shall be given
at 60 Wall Street, 3rd Floor, New York, NY 10260, Attention: Syndicate Desk.
Notices to the Company shall be given to it at Three Greenway Plaza, Suite 1300,
Houston, Texas 77046, Attention: G. Steven Dawson, Senior Vice President -
Finance, Chief Financial Officer, Treasurer and Secretary.
23
<PAGE> 24
13. Miscellaneous. This Agreement may be signed in counterparts, each
of which shall be an original and all of which together shall constitute one and
the same instrument. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to the
conflicts of laws provisions thereof.
Very truly yours,
CAMDEN PROPERTY TRUST
By:
---------------------------------------------
Name: G. Steven Dawson
Title: Senior Vice President - Finance,
Chief Financial Officer, Treasurer
and Secretary
Accepted: April 15, 1999
Chase Securities Inc.
J.P. Morgan SECURITIES INC.
NationsBanc Montgomery Securities LLC
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
WARBURG DILLON READ LLC
By: J.P. MORGAN & SECURITIES INC.
By:
--------------------------------
Name:
-----------------------
Title:
----------------------
24
<PAGE> 25
SCHEDULE I
<TABLE>
<CAPTION>
Underwriters: Principal Amount:
<S> <C>
Chase Securities Inc. $60,000,000
J.P. Morgan Securities Inc. $60,000,000
NationsBanc Montgomery Securities LLC $60,000,000
Merrill Lynch & Co. $10,000,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Warburg Dillon Read LLC $10,000,000
Underwriting Agreement dated: April 15, 1999
Registration Statement No.: 333-24637
Indenture: Indenture dated as of February 15, 1996 and Supplemental
Indenture dated as of February 15, 1996, both between
Camden Property Trust ("Camden") and U.S. Trust Company of
Texas, N.A.
Title of Securities: 7% Notes due 2004 (the "Notes")
Currency: United States Dollars
Aggregate Principal Amount: $200,000,000
Current Ratings: Moody's Investors Service, Inc.: Baa2; Standard & Poor's
Ratings Services: BBB; Duff & Phelps Credit Rating Co.: BBB
Price to Public: 99.440% of the principal amount of the Notes, plus accrued
interest from April 20, 1999.
Purchase Price: 98.840% of the principal amount of the Notes, plus accrued
interest from April 20, 1999.
Form: Global Note.
Maturity: April 15, 2004.
Interest Payment Dates: Semi-annually on April 15 and October 15, commencing on
October 15, 1999.
</TABLE>
25
<PAGE> 26
<TABLE>
<S> <C>
Redemption: Optional redemption by the Company of some or all of the
Notes on one or more occasions prior to maturity at a price
equal to the sum of (a) 100% of the principal amount of the
Notes and (b) make-whole premium, together with accrued and
unpaid interest up to but not including the redemption date.
Sinking Fund Provisions: None.
Denomination and Form: The Notes are issuable only in registered form without
coupons in denominations of $1,000 and any integral
multiple thereof.
Defeasance and Covenant Defeasance: Sections 1402 and 1403 of the Indenture contain provisions
for defeasance at any time of (a) the entire indebtedness
of the Company on the Notes and (b) certain restrictive
covenants, which shall include all covenants contained in
the Supplemental Indenture dated as of February 15, 1996,
and the related defaults and Events of Default applicable
to the Company, in each case, upon compliance by the
Company with certain conditions set forth in the Indenture,
which provisions apply to the Notes.
Seniority and Certain Other Provisions: The Notes shall rank on parity with the Company's senior
indebtedness. The provisions of the Supplemental Indenture
dated as of February 15, 1996, including the restrictions of
Section 1012 set forth therein, shall apply to the Notes.
Definitions and Other Provisions: As per Prospectus Supplement dated April 15, 1999.
Closing Date, Time and Location: April 20, 1999, 9:00 a.m., Dallas time, at the offices of Locke
Liddell & Sapp LLP in Dallas, Texas.
</TABLE>
26
<PAGE> 27
SCHEDULE II
SUBSIDIARIES OF CAMDEN PROPERTY TRUST
CPT-GP, Inc.
CPT-LP, Inc.
Camden Acquisition, Inc.
Camden Building, Inc.
Camden Capital, Inc. (2)
Camden Realty, Inc. (2)
Camden Development, Inc.
Camden Housing, Inc. (3)
Camden Operating, L.P. (1) (2)
Camden Residential Services, Inc. (3)
Camden USA, Inc. (1)
Denver West Apartments, LLC (2)
NQRS, Inc. (2)
Oasis - California, Inc.
Oasis Martinique, LLC (2)
ORI, Inc.
ORI - Colorado, Inc.
ORI Park, Inc.
ORI Wexford, Inc.
Paradim, Inc. (2)
Paradim Charlotte I, L.L.C. (2)
Paradim Greensboro I, L.L.C. (2)
Paradim GP Dallas I, Inc. (2)
Paradim LP Dallas I, Inc. (2)
Paradim Dallas I, L.P. (2)
Sierra-Nevada Multifamily Investments, LLC (2)
Teleserve, Inc. (2)
SRG/Camden I, LLC (2)
Wasatch-Camden LLC (2)
Schooner Bay I, L.L.C. (2)
(1) Significant subsidiary as defined in Rule 102(w) of Regulation S-X.
(2) Not wholly-owned by Camden Property Trust.
(3) Wholly-owned by a non-wholly-owned subsidiary.
27
<PAGE> 1
EXHIBIT 4.3
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR
EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE
DEPOSITORY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY
AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY (AS
DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
CAMDEN PROPERTY TRUST
7% NOTE DUE APRIL 15, 2004
REGISTERED PRINCIPAL AMOUNT
No.: R-1 $200,000,000
CUSIP No.: 133131AE2
CAMDEN PROPERTY TRUST, a real estate investment trust organized and
existing under the laws of the State of Texas (hereinafter called the "Company,"
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to CEDE & Co., or
registered assigns, upon presentation, the principal sum of Two Hundred Million
Dollars ($200,000,000) on April 15, 2004 at the office or agency of the Company
referred to below, and to pay interest thereon from April 20, 1999, or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually in arrears on April 15 and October 15 in each year,
commencing October 15, 1999 at the rate of 7% per annum, until the entire
principal hereof is paid or made available for payment. The interest so payable,
and punctually paid or duly provided for on any Interest Payment Date will, as
provided for in the Indenture, be paid to the person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest which shall be April 1 or October 1
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for shall forthwith cease to be payable to the Holder on such Regular Record
Date, and may either be paid to the Person in whose name this Security (or one
or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities of this
series not more than 15 days and not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this Series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in the Indenture.
1
<PAGE> 2
Payment of the principal of, or Make-Whole Amount, if any, and interest
on, the Securities will be made to The Depository Trust Company or its nominee
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts; provided,
however, that at the option of the Company payment of interest may be made by
(i) check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register or (ii) by wire transfer of funds to an
account of the Person entitled thereto maintained within the United States.
Securities of this series may be redeemed at any time at the option of
the Company, in whole or in part, upon notice of not more than 60 nor less than
30 days prior to the Redemption Date, at a redemption price equal to the sum of
(i) the principal amount of the Securities being redeemed plus accrued interest
thereon to the Redemption Date and (ii) the Make-Whole Amount, if any, with
respect to such Securities.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH IN THIS PLACE.
Unless the Certificate of Authentication hereon has been executed by or
on behalf of the Trustee by manual signature, this Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
CAMDEN PROPERTY TRUST
Dated: April 20, 1999 By:
------------------------------------
G. Steven Dawson
Senior Vice President-Finance,
Chief Financial Officer, Treasurer
and Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
U.S. TRUST COMPANY OF TEXAS, N.A.
as Trustee
By: Dated: April 20, 1999
--------------------------------
Authorized Officer
2
<PAGE> 3
Reverse of Note
CAMDEN PROPERTY TRUST
7% NOTE DUE APRIL 15, 2004
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of February 15, 1996, as supplemented by the
Supplemental Indenture, dated as of February 15, 1996 (as so supplemented,
herein called the "Indenture"), between the Company and U.S. TRUST COMPANY OF
TEXAS, N.A., a national banking association organized under the laws of the
United States of America, as Trustee (herein called the "Trustee," which term
includes any successor trustee under the Indenture with respect to the series of
which this Security is a part), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the series designated on the first page hereof, limited in aggregate
principal amount to $200,000,000.
"Make-Whole Amount" means, in connection with any optional redemption
or accelerated payment of any Security, the excess, if any, of (i) the aggregate
present value as of the date of such redemption or accelerated payment of each
dollar of principal being redeemed or paid and the amount of interest (exclusive
of interest accrued to the date of redemption or accelerated payment) that would
have been payable in respect of such dollar if such redemption or accelerated
payment had not been made, determined by discounting, on a semi-annual basis,
such principal and interest at the Reinvestment Rate (determined on the third
Business Day preceding the date such notice of redemption is given or
declaration of acceleration is made) from the respective dates on which such
principal and interest would have been payable if such redemption or accelerated
payment had not been made, over (ii) the aggregate principal amount of the
Securities being redeemed or paid.
"Reinvestment Rate" means .25% (twenty-five one hundredths of one
percent) plus the arithmetic mean of the yields under the respective headings
"This Week" and "Last Week" published in the Statistical Release under the
caption "Treasury Constant Maturities" for the maturity (rounded to the nearest
month) corresponding to the remaining life to maturity, as of the payment date
of the principal being redeemed or paid. If no maturity exactly corresponds to
such maturity, yields for the two published maturities most closely
corresponding to such maturity shall be calculated pursuant to the immediately
preceding sentence and the Reinvestment Rate shall be interpolated or
extrapolated from such yields on a straight-line basis, rounding in each of such
relevant periods to the nearest month. For purposes of calculating the
Reinvestment Rate, the most recent Statistical Release published prior to the
date of determination of the Make-Whole Amount shall be used.
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which establishes yields on actively traded United
States government securities adjusted to constant maturities or, if such
statistical release is not published at the time of any determination under the
Indenture, then such other reasonably comparable index which shall be designated
by the Company.
The covenants set forth in Section 1012 of the Indenture shall be fully
applicable to this Security.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Company on this Security and (b) certain restrictive
covenants and the related defaults and Events of Default applicable to the
Company, in each case, upon compliance by the Company with certain conditions
set forth in the Indenture, which provisions apply to this Security.
3
<PAGE> 4
If any Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of, and the Make-Whole Amount, if any,
on, the Securities of this series may be declared due and payable in the manner
and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee, offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and the Trustee shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof (and
premium or Make-Whole Amount, if any) or any interest on and any Additional
Amounts in respect thereof on or after the respective due dates expressed
herein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than a majority in principal amount of the
Securities of each series at the time Outstanding affected thereby. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of, Make-Whole Amount, if
any, on, and interest on this Security at the times, place and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any Place of Payment where the principal of,
Make-Whole Amount, if any, on, and interest on this Security are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
4
<PAGE> 5
No recourse under or upon any obligation, covenant or agreement
contained in the Indenture or in this Security, or because of any indebtedness
evidenced thereby, shall be had against any promoter, as such or, against any
past, present or future shareholder, officer, trust manager or director, as
such, of the Company or of any successor, either directly or through the Company
or any successor, under any rule of law, statute or constitutional provision or
by the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of this Security by the Holder thereof and as part of the
consideration for the issue of the Securities of this series.
All terms used in this security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE SECURITIES, INCLUDING THIS SECURITY, SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused "CUSIP" numbers to be
printed on the Securities of this series as convenience to the Holders of such
Securities. No representation is made as to the correctness or accuracy of such
CUSIP numbers as printed on the Securities, and reliance may be placed only on
the other identification numbers printed hereon.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
5
<PAGE> 6
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COMM -- as tenants in common UNIF GIFT/TRANSFER MIN ACT --
TEN ENT -- as tenants by the entireties ________ Custodian ________
JT TEN -- as joint tenants with right of (Cust) (Minor)
survivorship and not as tenants in Under Uniform Gifts/Transfers
commom to Minors Act ______
(State)
Additional abbreviations may also be used though not in the above list.
---------------------------------------
Social Security or taxpayer I.D. or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(name and address of assignee)
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing , attorney to transfer
said Note on the books kept for registration thereof,
with full power of substitution in the premises.
Dated:
6
