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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): Commission File Number:
April 27, 1998 1-12358
COLONIAL PROPERTIES TRUST
(Exact name of registrant as specified in its charter)
Alabama 59-7007599
(State or other jurisdiction (IRS Employer
of incorporation) Identification Number)
2101 Sixth Avenue North
Suite 750
Birmingham, Alabama 35202
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
(205) 250-8700
Not applicable
(Former name or former address, if changed since last report)
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COLONIAL PROPERTIES TRUST
Item 5 - Other Events
Attached as Exhibits to this form are the documents listed below:
<TABLE>
<CAPTION>
Exhibit Document
------- --------
<S> <C>
1.1 Underwriting Agreement dated April 21, 1998, by and among
Colonial Properties Trust, Colonial Realty Limited
Partnership and Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated.
1.2 Terms Agreement dated April 21, 1998, by and between
Colonial Properties Trust and Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated.
5.1 Opinion of Hogan & Hartson L.L.P. regarding the
legality of the Shares
5.2 Opinion of Sirote & Permutt, P.C., regarding Alabama law
</TABLE>
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SIGNATURE
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.
COLONIAL PROPERTIES TRUST
Date: April 27, 1998 By: /s/ Douglas B. Nunnelley
-------------------------
Douglas B. Nunnelley,
Senior Vice President and
Secretary
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<CAPTION>
EXHIBIT INDEX
-------------
Exhibit Description Page
------- ----------- ----
<S> <C> <C>
1.1 Underwriting Agreement dated as of April 21, 1998, by and
among Colonial Properties Trust, Colonial Realty
Limited Partnership and Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith
Incorporated.
1.2 Terms Agreement dated as of April 21, 1998, by and between
Colonial Properties Trust and Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated.
5.1 Opinion of Hogan & Hartson L.L.P. regarding the legality
of the Shares
5.2 Opinion of Sirote & Permutt, P.C. as to Alabama law
</TABLE>
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Exhibit 1.1
COLONIAL PROPERTIES TRUST
(an Alabama Real Estate Investment Trust)
Preferred Shares, Common Shares, and Common Share Warrants
UNDERWRITING AGREEMENT
----------------------
April 21, 1998
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
250 Vesey Street
New York, NY 10281-1326
Ladies and Gentlemen:
Colonial Properties Trust, an Alabama real estate investment trust (the
"Company") and a limited partner and the indirect general partner of Colonial
Realty Limited Partnership, a limited Partnership organized under the laws of
Delaware (the "Operating Partnership"), proposes to issue and sell preferred
shares of beneficial interest ("Preferred Shares"), common shares of beneficial
interest, $.01 par value ("Common Shares"), and warrants exercisable for Common
Shares ("Common Share Warrants"), from time to time, in one or more offerings on
terms to be determined at the time of sale. Each series of Preferred Shares may
vary as to the specific number of shares, title, stated value, liquidation
preference, issuance price, ranking, dividend rate or rates (or method of
calculation), dividend payment dates, redemption provisions, sinking fund
requirements, conversion or exchange provisions and any other variable terms
established by the Company's Board of Trustees. The Common Share Warrants will
be issued pursuant to a warrant agreement (the "Warrant Agreement") between the
Company and a warrant agent (the "Warrant Agent"). As used herein, "Securities"
shall mean the Preferred Shares, Common Shares and Common Share Warrants; and
"Warrant Securities" shall mean the Common Shares issuable upon exercise of
Common Share Warrants. As used herein, "you" and "your", unless the context
otherwise requires, shall mean the parties to whom this underwriting agreement
(this "Agreement") is addressed together with the other parties, if any,
identified in the applicable Terms Agreement (as defined herein) as additional
co-managers with respect to Underwritten Securities (as hereinafter defined)
purchased pursuant thereto.
Whenever the Company determines to make an offering of Securities
through you or through an underwriting syndicate managed by you, the Company
will enter into an agreement
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(the "Terms Agreement") providing for the sale of such Securities (the
"Underwritten Securities") to, and the purchase and offering thereof by, you and
such other underwriters, if any, selected by you as have authorized you to enter
into such Terms Agreement on their behalf (the "Underwriters", which term shall
include you whether acting alone in the sale of the Underwritten Securities or
as a member of an underwriting syndicate and any Underwriter substituted
pursuant to Section 10 hereof). The Terms Agreement relating to the offering of
Underwritten Securities shall specify the number of Underwritten Securities of
each class or series to be initially issued (the "Initial Underwritten
Securities"), the names of the Underwriters participating in such offering
(subject to substitution as provided in Section 10 hereof), the number of
Initial Underwritten Securities which each such Underwriter severally agrees to
purchase, the names of such of you or such other Underwriters acting as
co-managers, if any, in connection with such offering, the price at which the
Initial Underwritten Securities are to be purchased by the Underwriters from the
Company, the initial public offering price, if any, the time, date and place of
delivery and payment, any delayed delivery arrangements and any other variable
terms of the Initial Underwritten Securities (including but not limited to,
current ratings, designations, liquidation preferences, conversion or exchange
provisions, redemption provisions and sinking fund requirements (in the case of
Preferred Shares only) and the terms of the Warrant Securities and the terms,
prices and dates upon which such Warrant Securities may be purchased). In
addition, each Terms Agreement shall specify whether the Company has agreed to
grant to the Underwriters an option to purchase additional Underwritten
Securities to cover over-allotments, if any, and the number of Underwritten
Securities subject to such option (the "Option Securities"). As used herein, the
term "Underwritten Securities" shall include the Initial Underwritten Securities
and all or any portion of the Option Securities agreed to be purchased by the
Underwriters as provided herein, if any. The Terms Agreement, which shall be
substantially in the form of Exhibit A hereto, may take the form of an exchange
of any standard form of written telecommunication between you and the Company.
Each offering of Underwritten Securities through you or through an underwriting
syndicate managed by you will be governed by this Agreement, as supplemented by
the applicable Terms Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-38613) for the
registration of up to $297,406,250 of the Securities and Warrant Securities and
certain of the Company's debt securities, under the Securities Act of 1933, as
amended (the "1933 Act"), and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations"), and the Company has filed such
amendments thereto as may have been required prior to the execution of the
applicable Terms Agreement. Such registration statement (as amended, if
applicable) has been declared effective by the Commission. Such registration
statement and the prospectus constituting a part thereof, in each case as
supplemented by a prospectus supplement relating to the offering of Underwritten
Securities (the "Prospectus Supplement"), including in each case all documents
incorporated therein by reference and the information, if any, deemed to be a
part thereof pursuant to Rule 430A(b) or Rule 434 of the 1933 Act Regulations as
from time to time amended or supplemented pursuant to the 1933 Act, the
Securities Exchange Act of 1934, as amended (the "1934 Act"), or otherwise, are
collectively referred to herein as the "Registration Statement" and the
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"Prospectus", respectively; provided, however, that a Prospectus Supplement
shall be deemed to have supplemented the Prospectus only with respect to the
offering of Underwritten Securities to which it relates. All references in this
Agreement to financial statements and schedules and other information which is
"contained," "included" or "stated" in the Registration Statement or the
Prospectus (and all other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which
is or is deemed to be incorporated by reference in the Registration Statement or
the Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement or the Prospectus shall
be deemed to mean and include the filing of any document under the 1934 Act
which is or is deemed to be incorporated by reference in the Registration
Statement or the Prospectus, as the case may be. If the Company elects to rely
on Rule 434 under the 1933 Act Regulations, all references to the Prospectus
shall be deemed to include, without limitation, the form of prospectus and the
abbreviated term sheet, taken together, provided to the Underwriters by the
Company in reliance on Rule 434 under the 1933 Act (the "Rule 434 Prospectus").
If the Company files a registration statement to register a portion of the
Securities and Warrant Securities and relies on Rule 462(b) for such
registration statement to become effective upon filing with the Commission (the
"Rule 462 Registration Statement"), then any reference to "Registration
Statement" herein shall be deemed to be to both the registration statement
referred to above (No. 333-38613) and the Rule 462 Registration Statement, as
each such registration statement may be amended pursuant to the 1933 Act.
Section 1. REPRESENTATIONS AND WARRANTIES.
The Company and the Operating Partnership each severally represents and
warrants to you, as of the date hereof, and to you and each other Underwriter
named in the applicable Terms Agreement, as of the date thereof (in each case, a
"Representation Date"), as follows:
(i) The Registration Statement and the Prospectus, at the time
the Registration Statement became effective and at each time thereafter
on which the Company filed an Annual Report on From 10-K with the
Commission, complied, and as of each Representation Date will comply,
in all material respects with the requirements of the 1933 Act and the
1933 Act Regulations; the Registration Statement, at the time the
Registration Statement became effective and at each time thereafter on
which the Company filed an Annual Report on From 10-K with the
Commission, did not, and at each time thereafter on which any amendment
to the Registration Statement becomes effective or the Company files an
Annual Report on Form 10-K with the Commission and as of each
Representation Date, and at the Closing Time (as hereinafter defined),
will not, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; and the Prospectus, as of
the date hereof, does not, and as of each Representation Date will not,
include an 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;
PROVIDED, HOWEVER, that the representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration
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<PAGE>
Statement or Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by any Underwriter
through you expressly for use in the Registration Statement or
Prospectus.
(ii) The accountants who certified the financial statements
and supporting schedules included or incorporated by reference in the
Registration Statement and the Prospectus are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations;
and there have been no disagreements with any accountants or
"reportable events" (as defined in Item 304 of Regulation S-K
promulgated by the Commission), in either case as required to be
disclosed in the Prospectus or elsewhere pursuant to such Item 304.
(iii) The historical financial statements of the Company
included or incorporated by reference in the Registration Statement and
the Prospectus present fairly the financial position of the Company,
its consolidated Subsidiaries and the Operating Partnership as at the
dates indicated and the results of operations for the periods
specified; except as otherwise stated in the Registration Statement and
the Prospectus, said financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis and comply with the applicable accounting requirements
of the 1933 Act (including, without limitation, Rule 3-14 of Regulation
S-X promulgated by the Commission), and all adjustments necessary for a
fair presentation of the results for such periods have been made; the
supporting schedules included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the
information required to be stated therein; and the selected financial
data (both historical and pro forma) included or incorporated by
reference in the Registration Statement and the Prospectus present
fairly the information shown therein and have been compiled on a basis
consistent with the related financial statements presented therein.
(iv) The 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 generally accepted
accounting principles; the pro forma consolidated financial statements
included or incorporated by reference in the Registration Statement and
the Prospectus present fairly the pro forma financial position of the
Company and its consolidated Subsidiaries as of the dates indicated and
the results of operations for the periods specified; and such pro forma
financial statements have been prepared in accordance with generally
accepted accounting principles applied on a basis consistent with the
audited financial statements of the Company included or incorporated by
reference in the Registration Statement and the Prospectus, the
assumptions on which such pro forma financial statements have been
prepared are reasonable and are set forth in the notes thereto, and
such pro forma financial statements have been prepared, and the pro
forma adjustments set forth therein have been applied, in accordance
with the applicable accounting requirements of the 1933 Act and the
1933 Act Regulations (including, without limitation, Regulation S-X
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<PAGE>
promulgated by the Commission), and such pro forma adjustments have
been properly applied to the historical amounts in the compilation of
such statements.
(v) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (a) there has been no material adverse change
in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company, and its Subsidiaries
(which term, as used in this Agreement, includes majority-owned
corporations, partnerships and other entities, including Colonial
Properties Holding Company, Inc. ("CPHC"), the Operating Partnership,
Colonial Properties Services Limited Partnership and Colonial
Properties Services, Inc., and includes direct and indirect
Subsidiaries, if any) considered as one enterprise, or any of the real
property or improvements thereon owned by either the Company or any of
its Subsidiaries (each individually a "Property" and collectively the
"Properties"), whether or not arising in the ordinary course of
business, (b) no material casualty loss or material condemnation or
other material adverse event with respect to any of the Properties has
occurred, (c) there have been no transactions entered into by the
Company or any of its Subsidiaries, other than those in the ordinary
course of business, which are material with respect to the Company, and
its Subsidiaries considered as one enterprise, and (d) except for
regular quarterly dividends on the Company's Common Shares or dividends
or distributions declared, paid or made in accordance with the terms of
any series of the Company's Preferred Shares, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(vi) The Company has been duly organized and is validly
existing as a real estate investment trust in good standing under the
laws of the State of Alabama, with power and authority to own, lease
and operate its Properties and to conduct its business as described in
the Prospectus and to enter into and perform its obligations under this
Agreement and the Terms Agreement and the Company is duly qualified to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify or to be 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 considered as one enterprise.
(vii) The Agreement of Limited Partnership of the Operating
Partnership, as amended and restated (the "Agreement of Limited
Partnership"), has been duly and validly authorized, executed and
delivered by Colonial Properties Holding Company, Inc., a wholly-owned
Subsidiary of the Company ("CPHC"), as general partner of the Operating
Partnership, and by the limited partners of the Operating Partnership,
including the Company, and is a valid and binding agreement of CPHC and
such limited partners of the Operating Partnership, enforceable in
accordance with its terms, except as limited by (a) the effect of
bankruptcy, insolvency, reorganization, moratorium or other similar
laws
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now or hereafter in effect relating to or affecting the rights or
remedies of creditors or (b) the effect of general principles of
equity, whether enforcement is considered in a proceeding in equity or
at law, and the discretion of the court before which any proceeding
therefor may be brought. The Operating Partnership has been duly
formed and is validly existing and is in good standing under the laws
of the State of Delaware, has power and authority to own, lease and
operate its Properties and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or to be
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, its Subsidiaries and the
Operating Partnership considered as one enterprise.
(viii) Each Subsidiary of the Company has been duly formed and
is validly existing and in good standing under the laws of the
jurisdiction of its origin, has power and authority to own, lease and
operate its Properties and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or to be 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, its Subsidiaries and the Operating
Partnership considered as one enterprise. Except as otherwise stated in
the Prospectus, all of the issued and outstanding capital stock or
other ownership interests in each such Subsidiary have been duly
authorized and validly issued, are fully paid and non-assessable and
are owned by the Company, directly or through Subsidiaries, free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity, except for security interests granted in respect of
indebtedness of the Company or any of its Subsidiaries and described in
the Prospectus.
(ix) Each of the partnership agreements to which the Company
or any of its Subsidiaries is a party has been duly authorized,
executed and delivered by the parties thereto and constitutes the valid
agreement thereof, enforceable in accordance with its terms, except as
limited by (a) the effect of bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
or affecting the rights or remedies of creditors or (b) the effect of
general principles of equity, whether enforcement is considered in a
proceeding in equity or at law, and the discretion of the court before
which any proceeding therefor may be brought; and the execution,
delivery and performance of any of such agreements by the Company or
any of its Subsidiaries, as applicable, did not, at the time of
execution and delivery, and does not constitute a breach of, or default
under, the charter, by-laws, partnership agreement (or other
organizational documents) of such party or any material contract,
lease or other instrument to which such party is a party or by which
its properties may be bound or any law, administrative regulation or
administrative or court decree.
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(x) The authorized, issued and outstanding capital shares of
the Company is as set forth in the applicable prospectus supplement
under "Capitalization" (except for subsequent issuances, if any,
pursuant to reservations, agreements, employee benefit plans, dividend
reinvestment or stock purchase plans, employee and director stock
option or restricted stock plans or upon the exercise of options or
convertible securities referred to in the Prospectus); and such shares
have been duly authorized and validly issued and are fully paid and
non-assessable and are not subject to preemptive or other similar
rights.
(xi) The Underwritten Securities being sold pursuant to this
Agreement and the applicable Terms Agreement have, as of each
Representation Date, been duly authorized by the Company, and such
Underwritten Securities have been duly authorized for issuance and sale
pursuant to this Agreement and such Terms Agreement, and such
Underwritten Securities, when issued and delivered by the Company
pursuant to this Agreement against payment of the consideration set
forth in such Terms Agreement or any Delayed Delivery Contract (as
hereinafter defined), will be validly issued, fully paid and
non-assessable, and the issuance of such Underwritten Securities will
not be subject to preemptive or other similar rights; the Preferred
Shares, if applicable, conform to the provisions established by the
Board of Trustees of the Company; and the Underwritten Securities being
sold pursuant to the applicable Terms Agreement conform in all material
respects to all statements relating thereto contained in the
Prospectus.
(xii) If applicable, the Common Share Warrants have been duly
authorized and, when issued and delivered pursuant to this Agreement
and countersigned by the Warrant Agent as provided in the Warrant
Agreement, will have been duly executed, countersigned, issued and
delivered and will constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the Warrant Agreement
under which they are to be issued; the issuance of the Warrant
Securities upon exercise of the Common Share Warrants will not be
subject to preemptive or other similar rights; and the Common Share
Warrants conform in all material respects to all statements relating
thereto contained in the Prospectus.
(xiii) If applicable, the Common Shares issuable upon
conversion of any of the Preferred Shares or the Warrant Securities
will have been duly and validly authorized and reserved for issuance
upon such conversion by all necessary corporate action and such shares,
when issued upon such conversion, will be duly authorized and validly
issued and will be fully paid and non-assessable, and the issuance of
such shares upon conversion will not be subject to preemptive or other
similar rights; the Common Shares issuable upon conversion of any of
the Preferred Shares or the Warrant Securities, conform in all material
respects to all statements relating thereto contained in the
Prospectus.
(xiv) The applicable Warrant Agreement, if any, will have been
duly authorized, executed and delivered by the Company prior to the
issuance of any applicable Underwritten Securities, and each
constitutes a valid and legally binding agreement of the Company
enforceable in accordance with its terms, except as
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enforcement thereof may be limited by bankruptcy, insolvency or other
similar laws relating to or affecting creditors' rights generally and
by general equity principles (regardless of whether enforcement is
considered in a proceeding in equity or at law); and the Warrant
Agreement, if any, conforms in all material respects to all statements
relating thereto contained in the Prospectus.
(xv) None of the Company or any of its Subsidiaries is in
violation of its charter, by-laws, partnership agreement or other
organizational documents or in default in the performance or observance
of any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any of its Subsidiaries is a party
or by which it or any of them may be bound, or to which any of the
property or assets of the Company or any of its Subsidiaries is
subject, except for any such violation or default that 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 considered as one enterprise, and the execution,
delivery and performance of this Agreement, the applicable Terms
Agreement or the applicable Warrant Agreement, if any, and the
consummation of the transactions contemplated herein and therein and
compliance by the Company and the Operating Partnership (with respect
to this Agreement), each severally, with obligations hereunder and
thereunder have been duly authorized by all necessary corporate, trust
or partnership action, and will not materially conflict with or
constitute a material breach of, or material default under, or result
in the creation or imposition of any material lien, charge or
encumbrance upon any property or assets of the Company or any of its
Subsidiaries pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company or any
of its Subsidiaries is a party or by which any of them may be bound, or
to which any of the property or assets of the Company or any of its
Subsidiaries is subject, nor will such action result in any violation
of the charter, by-laws, the partnership agreement or other
organizational documents of the Company or any of its Subsidiaries, or
any applicable law, administrative regulation or administrative or
court decree.
(xvi) The Company has qualified as a real estate investment
trust ("REIT") for its taxable years ended December 31, 1993, December
31, 1994, December 31, 1995, December 31, 1996 and December 31, 1997
and the Company is organized and operates in a manner that will enable
it to qualify to be taxed as a REIT under the Code for the taxable year
ended December 31, 1998 and thereafter provided the Company continues
to meet the asset composition, source of income, shareholder
diversification, distributions, record keeping, and other requirements
of the Code which are necessary for the Company to qualify as a REIT.
(xvii) None of the Company or any of its Subsidiaries is
required to be registered as an "investment company" under the
Investment Company Act of 1940, as amended (the "1940 Act").
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(xviii) There is no action, suit or proceeding before or by
any court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company or any of its Subsidiaries
threatened against or affecting the Company or any of its Subsidiaries
which is required to be disclosed in the Prospectus (other than as
disclosed therein), or which might result in any material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
Subsidiaries considered as one enterprise, or which might materially
and adversely affect the property or assets thereof or which might
materially and adversely affect the consummation of this Agreement, the
applicable Terms Agreement, or the applicable Warrant Agreement, if
any, or the transactions contemplated herein or therein; all pending
legal or governmental proceedings to which the Company or any of its
Subsidiaries is a party or of which any property or assets of the
Company or any of its Subsidiaries is subject which are not described
in the Prospectus, including ordinary routine litigation incidental to
the business, are, considered in the aggregate, not material to the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its Subsidiaries considered as
one enterprise; and there are no contracts or documents of the Company
or any of its Subsidiaries which are required to be filed as exhibits
to the Registration Statement by the 1933 Act or by the 1933 Act
Regulations which have not been so filed.
(xix) The Company and its Subsidiaries own or possess any
trademarks, service marks, trade names or copyrights required in order
to conduct their respective businesses as described in the Prospectus,
other than those the failure to possess or own 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 considered as one enterprise.
(xx) No authorization, approval, permit or consent of any
court or governmental authority or agency is necessary in connection
with the consummation by the Company or the Operating Partnership of
the transactions contemplated by this Agreement, the applicable Terms
Agreement, or any Depositary Agreement, except such as have been
obtained or as may be required under the 1933 Act or the 1933 Act
Regulations, state securities laws, real estate syndication laws or
under the rules and regulations of the National Association of
Securities Dealers, Inc.
(xxi) The Company and its Subsidiaries possess such
certificates, authorizations or permits issued by the appropriate
state, federal or foreign regulatory agencies or bodies necessary to
conduct their respective businesses as described in the Prospectus,
other than those the failure to possess or own 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 considered as one enterprise, and neither the Company
nor any of its Subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority or permit which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would
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materially and adversely affect the condition, financial or otherwise,
or the earnings, business affairs or business prospects of the Company
and its Subsidiaries considered as one enterprise.
(xxii) The Company has full right, power and authority under
its organizational documents to enter into this Agreement, the
applicable Terms Agreement and the Delayed Delivery Contracts, if any,
and this Agreement has been, and as of each Representation Date, the
applicable Terms Agreement and the Delayed Delivery Contracts, if any,
will have been, duly authorized, executed and delivered by the Company.
(xxiii) The Operating Partnership has full right, power and
authority under its organizational documents to enter into this
Agreement and this Agreement has been duly authorized, executed and
delivered by the Operating Partnership.
(xxiv) The documents incorporated or deemed to be incorporated
by reference in the Prospectus, at the time they were or hereafter are
filed with the Commission, complied and will comply in all material
respects with the requirements of the 1934 Act and the rules and
regulations of the Commission under the 1934 Act (the "1934 Act
Regulations"), and, when read together with the other information in
the Prospectus, at the time the Registration Statement became effective
and as of the applicable Representation Date or Closing Time (as
defined herein) or during the period specified in Section 3(f), did not
and will not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(xxv) There are no persons with registration or other similar
rights to have any securities registered pursuant to the Registration
Statement.
(xxvi) None of the Company or any of its Subsidiaries, or any
of the officers, directors, trustees or partners thereof has taken nor
will any of them take, directly or indirectly, any action resulting in
a violation of Regulation M under the 1934 Act or designed to cause or
result in, or which has constituted or which reasonably might be
expected to constitute, the stabilization or manipulation of the price
of the Underwritten Securities, Common Shares issuable upon conversion
of any of the Preferred Shares or facilitation of the sale or resale of
the Underwritten Securities.
(xxvii) Except as otherwise disclosed in the Prospectus and
except as 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 considered as one
enterprise: (a) except for the portion of Macon Mall that is leased by
the Company pursuant to a long-term subordinated ground lease, the
Company or its Subsidiaries have good and marketable title in fee
simple to all real property and improvements described
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in the Prospectus as being owned in fee and, at the Closing Time, the
Company and its Subsidiaries will have good and marketable title in
fee simple to all real property and improvements as described in the
Prospectus as being owned in fee; (b) all liens, charges,
encumbrances, claims or restrictions on or affecting the real property
and improvements owned by the Company or any of its Subsidiaries which
are required to be disclosed in the Prospectus are disclosed therein;
(c) none of the Company or any of its Subsidiaries, or to the
knowledge of the Company, any lessee of any portion of the real
property or improvements owned by the Company or any of its
Subsidiaries, is in default under any of the leases pursuant to which
the Company or any of its Subsidiaries leases such real property or
improvements, and the Company and its Subsidiaries know of 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; (d) all the real
property and improvements owned by the Company or its Subsidiaries
comply with all applicable codes and zoning laws and regulations; and
(e) the Company and its Subsidiaries have no knowledge of any pending
or threatened condemnation, zoning change or other proceeding or
action that would in any manner affect the size of, use of,
improvements on, construction on, or access to any of the real
property or improvements owned by the Company, any of its Subsidiaries
or the Operating Partnership.
(xxviii) The Company, its Subsidiaries or the Operating
Partnership has adequate title insurance on each Property owned in fee
by the Company or its Subsidiaries.
(xxix) Except as otherwise disclosed in the Prospectus, each
of the Company and the Operating Partnership has no knowledge of: (a)
the unlawful presence of any hazardous substances, hazardous materials,
toxic substances or waste materials (collectively, "Hazardous
Materials") on any of the Properties or (b) any unlawful spills,
releases, discharges or disposal of Hazardous Materials that have
occurred or are presently occurring on or from the Properties as a
result of any construction on or operation and use of the Properties,
which presence or occurrence would have a material adverse effect on
the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company, its Subsidiaries and the
Operating Partnership considered as one enterprise; and in connection
with the construction on or operation and use of the Properties, each
of the Company, and the Operating Partnership has no knowledge of any
material failure to comply with all applicable local, state and federal
environmental laws, regulations, ordinances and administrative and
judicial orders relating to the generation, recycling, reuse, sale,
storage, handling, transport and disposal of any Hazardous Materials
that could have a material adverse effect on the condition, financial
or otherwise, or the earnings, business affairs or business prospects
of the Company, its Subsidiaries and the Operating Partnership
considered as one enterprise.
Any certificate signed by any officer of the Company in such capacity
or as indirect general partner of the Operating Partnership and delivered to you
or to counsel for the Underwriters in connection with the offering of the
Underwritten Securities shall be deemed a representation and warranty by the
Company or the Operating Partnership, as the case may be, to
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each Underwriter participating in such offering as to the matters covered
thereby on the date of such certificate.
Section 2. PURCHASE AND SALE.
The several commitments of the Underwriters to purchase the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to have been made on the basis of the representations and warranties
herein contained and shall be subject to the terms and conditions herein set
forth.
In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
may grant, if so provided in the applicable Terms Agreement relating to the
Initial Underwritten Securities, an option to the Underwriters named in such
Terms Agreement, severally and not jointly, to purchase up to the number of
Option Securities set forth therein at the same price per Option Security as is
applicable to the Initial Underwritten Securities less the amount of any
distribution payable with respect to an Initial Underwritten Security but not
payable with respect to an Option Security. Such option, if granted, will expire
30 days or such lesser number of days as may be specified in the applicable
Terms Agreement after the Representation Date relating to the Initial
Underwritten Securities, and may be exercised in whole or in part from time to
time only for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial Underwritten
Securities upon notice by you to the Company setting forth the number of Option
Securities as to which the several Underwriters are then exercising the option
and the time, date and place of payment and delivery for such Option Securities.
Any such time and date of delivery (a "Date of Delivery") shall be determined by
you, but shall not be later than three full business days and not be earlier
than two full business days after the exercise of said option, unless otherwise
agreed upon by you and the Company. If the option is exercised as to all or any
portion of the Option Securities, each of the Underwriters, acting severally and
not jointly, will purchase that proportion of the total number of Option
Securities then being purchased which the number of Initial Underwritten
Securities each such Underwriter has severally agreed to purchase as set forth
in the applicable Terms Agreement bears to the total number of Initial
Underwritten Securities (except as otherwise provided in the applicable Terms
Agreement), subject to such adjustments as you in your discretion shall make to
eliminate any sales or purchases of fractional Initial Underwritten Securities.
Payment of the purchase price for, and delivery of, the Underwritten
Securities to be purchased by the Underwriters shall be made at the office of
Brown & Wood LLP, 58th Floor, One World Trade Center, New York, New York
10048-0557, or at such other place as shall be agreed upon by you and the
Company, at 9:00 A.M., New York City time, on the third business day (unless
postponed in accordance with the provisions of Section 10) following the date of
the applicable Terms Agreement or, if pricing takes place after 4:30 p.m. New
York City time on the date of the applicable Terms Agreement, on the fourth
business day (unless postponed in accordance with the provisions of Section 10)
following the date of the applicable Terms Agreement or at such other time as
shall be agreed upon by you and the Company (each such
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<PAGE>
time and date being referred to as a "Closing Time"). In addition, in the event
that any or all of the Option Securities are purchased by the Underwriters,
payment of the purchase price for, and delivery of certificates representing,
such Option Securities, shall be made at the above-mentioned offices of Brown &
Wood LLP, or at such other place as shall be agreed upon by you and the Company
on each Date of Delivery as specified in the notice from you to the Company.
Unless otherwise specified in the applicable Terms Agreement, payment shall be
made by wire transfer of immediately available funds to the Company against
delivery to you for the respective accounts of the Underwriters for the
Underwritten Securities to be purchased by them. The Underwritten Securities
shall be in such authorized denominations and registered in such names as you
may request in writing at least one business day prior to the applicable Closing
Time or Date of Delivery, as the case may be. The Underwritten Securities, which
may be in temporary form, will be made available for examination and packaging
by you on or before the first business day prior to the Closing Time or Date of
Delivery, as the case may be.
If authorized by the applicable Terms Agreement, the Underwriters named
therein may solicit offers to purchase Underwritten Securities from the Company
pursuant to delayed delivery contracts ("Delayed Delivery Contracts")
substantially in the form of Exhibit B hereto with such changes therein as the
Company may approve. As compensation for arranging Delayed Delivery Contracts,
the Company will pay to you at Closing Time, for the respective accounts of the
Underwriters, a fee specified in the applicable Terms Agreement for each of the
Underwritten Securities for which Delayed Delivery Contracts are made at the
Closing Time as is specified in the applicable Terms Agreement. Any Delayed
Delivery Contracts are to be with institutional investors of the types described
in the Prospectus. At the Closing Time, the Company will enter into Delayed
Delivery Contracts (for not less than the minimum number of Underwritten
Securities per Delayed Delivery Contract specified in the applicable Terms
Agreement) with all purchasers proposed by the Underwriters and previously
approved by the Company as provided below, but not for an aggregate number of
Underwritten Securities in excess of that specified in the applicable Terms
Agreement. The Underwriters will not have any responsibility for the validity or
performance of Delayed Delivery Contracts.
You shall submit to the Company, at least two business days prior to
the Closing Time, the names of any institutional investors with which it is
proposed that the Company will enter into Delayed Delivery Contracts and the
number of Underwritten Securities to be purchased by each of them, and the
Company will advise you, at least two business days prior to the Closing Time,
of the names of the institutions with which the making of Delayed Delivery
Contracts is approved by the Company and the number of Underwritten Securities
to be covered by each such Delayed Delivery Contract.
The number of Underwritten Securities agreed to be purchased by the
several Underwriters pursuant to the applicable Terms Agreement shall be reduced
by the number of Underwritten Securities covered by Delayed Delivery Contracts,
as to each Underwriter as set forth in a written notice delivered by you to the
Company; provided, however, that the total number of Underwritten Securities to
be purchased by all Underwriters shall be the total number
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<PAGE>
of Underwritten Securities covered by the applicable Terms Agreement, less the
number of Underwritten Securities covered by Delayed Delivery Contracts.
Section 3. COVENANTS OF THE COMPANY AND THE OPERATING PARTNERSHIP. Each
of the Company and the Operating Partnership covenants with you, and with each
Underwriter participating in the offering of Underwritten Securities, as
follows:
Immediately following the execution of the applicable Terms Agreement,
the Company will prepare a Prospectus Supplement setting forth the number of
Underwritten Securities covered thereby and their terms not otherwise specified
in the Prospectus pursuant to which the Underwritten Securities are being
issued, the names of the Underwriters participating in the offering and the
number of Underwritten Securities which each severally has agreed to purchase,
the names of the Underwriters acting as co-managers in connection with the
offering, the price at which the Underwritten Securities are to be purchased by
the Underwriters from the Company, the initial public offering price, if any,
the selling concession and reallowance, if any, any delayed delivery
arrangements, and such other information as you and the Company deem appropriate
in connection with the offering of the Underwritten Securities; and the Company
will, by the close of business in New York on the business day immediately
succeeding the date of the applicable Terms Agreement, transmit copies of the
Prospectus Supplement to the Commission for filing pursuant to Rule 424(b) of
the 1933 Act Regulations and will furnish to the Underwriters named therein as
many copies of the Prospectus (including such Prospectus Supplement) as you
shall reasonably request. If the Company elects to rely on Rule 434 under the
1933 Act Regulations, the Company will prepare an abbreviated term sheet that
complies with the requirements of Rule 434 under the 1933 Act Regulations and
will provide the Underwriters with copies of the form of Rule 434 Prospectus, in
such number as the Underwriters may reasonably request, and file or transmit for
filing with the Commission the form of Prospectus complying with Rule 434(c)(2)
of the 1933 Act Regulations in accordance with Rule 424(b) of the 1933 Act
Regulations by the close of business in New York on the business day immediately
succeeding the date of the applicable Terms Agreement.
The Company will notify you immediately, and confirm such notice in
writing, of (i) the effectiveness of any amendment to the Registration
Statement, (ii) the transmittal to the Commission for filing of any Prospectus
Supplement or other supplement or amendment to the Prospectus or any document to
be filed pursuant to the 1934 Act, (iii) the receipt of any comments from the
Commission, (iv) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (v) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose. The Company will make every reasonable effort
to prevent the issuance of any such stop order and, if any stop order is issued,
to obtain the lifting thereof at the earliest possible moment.
At any time when the Prospectus is required to be delivered under the
1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities, the Company will give you notice of its intention to file or prepare
any amendment to the Registration Statement or any
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amendment or supplement to the Prospectus, whether pursuant to the 1933 Act,
1934 Act or otherwise (including any revised Prospectus which the Company
proposes for use by the Underwriters in connection with an offering of
Underwritten Securities which differs from the Prospectus on file at the
Commission at the time the Registration Statement first becomes effective,
whether or not such revised Prospectus is required to be filed pursuant to Rule
424(b) of the 1933 Act Regulations, or any abbreviated term sheet prepared in
reliance on Rule 434 of the 1933 Act Regulations), and will furnish you with
copies of any such amendment or supplement a reasonable amount of time prior to
such proposed filing or preparation, as the case may be, and will not file or
prepare any such amendment or supplement or other documents in a form to which
you or counsel for the Underwriters shall reasonably object.
The Company will deliver to each Underwriter as many signed and
conformed copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) as such Underwriter reasonably requests.
The Company will furnish to each Underwriter, from time to time during
the period when the Prospectus is required to be delivered under the 1933 Act or
the 1934 Act in connection with sales of the Underwritten Securities, such
number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request for the purposes contemplated by the 1933
Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations.
If at any time when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities any event shall occur or condition exist as a result of which it is
necessary, in the reasonable opinion of counsel for the Underwriters or counsel
for the Company, to amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the reasonable opinion
of either such counsel, at any such time to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, then the Company will promptly prepare and file
with the Commission such amendment or supplement, whether by filing documents
pursuant to the 1933 Act, the 1934 Act or otherwise, as may be necessary to
correct such untrue statement or omission or to make the Registration Statement
and Prospectus comply with such requirements, and the Company will furnish to
the Underwriters a reasonable number of copies of such amendment or supplement.
The Company will endeavor, in cooperation with the Underwriters, to
qualify the Underwritten Securities, the Warrant Securities, if any, and Common
Shares issuable upon conversion of the Preferred Shares for offering and sale
under the applicable securities laws and real estate syndication laws of such
states and other jurisdictions of the United States as you may designate. In
each jurisdiction in which the Underwritten Securities, the Warrant Securities,
if any, and Common Shares issuable upon conversion of the Preferred Shares have
been so
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qualified, the Company will file such statements and reports as may be required
by the laws of such jurisdiction to continue such qualification in effect for so
long as may be required for the distribution of the Underwritten Securities and
the Warrant Securities; provided, however, that the Company shall not be
obligated to (A) qualify as a foreign entity in any jurisdiction where it is not
so qualified, (B) file any general consent to service of process, or (C) take
any action that would subject it to income taxation in any such jurisdiction.
With respect to each sale of Underwritten Securities, the Company will
make generally available to its security holders as soon as practicable, but not
later than 90 days after the close of the period covered thereby, an earnings
statement (in form complying with the provisions of Rule 158 of the 1933 Act
Regulations) covering a twelve month period beginning not later than the first
day of the Company's fiscal quarter next following the "effective date" (as
defined in such Rule 158) of the Registration Statement.
The Company will use its best efforts to meet the requirements to
qualify as a "real estate investment trust" under the Code for the taxable year
in which sales of the Underwritten Securities are to occur.
The Company, during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act in connection with sales of the
Underwritten Securities, will file all documents required to be filed with the
Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time
periods prescribed by the 1934 Act and the 1934 Act Regulations.
If the Preferred Shares are convertible into Common Shares, the Company
will reserve and keep available at all times, free of preemptive or other
similar rights, a sufficient number of Common Shares for the purpose of enabling
the Company to satisfy any obligations to issue such shares upon conversion of
the Preferred Shares, as the case may be, or upon the exercise of the Common
Share Warrants.
If applicable, the Company will use its best efforts to list the Common
Shares on the New York Stock Exchange or such other national exchange on which
the Company's Common Shares are then listed.
If Preferred Shares are convertible into Common Shares, the Company
will use its best efforts to list the Common Shares issuable on Conversion of
the Preferred Shares on the New York Stock Exchange or such other national
exchange on which the Company's Common Shares are then listed.
Neither the Company nor the Operating Partnership will, during a period
of 90 days from the date of the applicable Terms Agreement, with respect to the
Underwritten Securities covered thereby, without your prior written consent,
offer or sell, grant any option for the sale of, or enter into any agreement to
sell, any of the Company's or the Operating Partnership's equity securities
(other than the Underwritten Securities which are to be sold pursuant to such
Terms Agreement), except for Common Shares issued or to be issued pursuant to
this Agreement, pursuant to dividend reinvestment and stock purchase plans,
employee and director stock option and
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restricted stock plans, pursuant to redemption of limited partnership interests
in the Operating Partnership or as partial or full payment for properties
acquired or to be acquired by the Company or the Operating Partnership.
Section 4. PAYMENT OF EXPENSES. The Company will pay all expenses
incident to the performance of its obligations under this Agreement or the
applicable Terms Agreement, including (i) the printing and filing of the
Registration Statement as originally filed and of each amendment thereto, (ii)
the reproduction and filing of this Agreement and the applicable Terms
Agreement, (iii) the preparation, issuance and delivery of the Underwritten
Securities and the Warrant Securities, if any, to the Underwriters, (iv) the
fees and disbursements of the Company's counsel and accountants, (v) the
qualification of the Underwritten Securities, the Warrant Securities and the
Common Shares issuable upon conversion of Preferred Shares, if any, under
securities laws and real estate syndication laws in accordance with the
provisions of Section 3(g), including filing fees and the fees and disbursements
of counsel for the Underwriters in connection therewith and in connection with
the preparation of any Blue Sky Survey, (vi) the reproduction and delivery to
the Underwriters of copies of any Blue Sky Survey, (vii) the printing and
delivery to the Underwriters of copies of the Registration Statement as
originally filed and of each amendment thereto, each preliminary prospectus and
of the Prospectus and any amendments or supplements thereto, (viii) the
providing and delivery to the Underwriters of copies of the applicable Warrant
Agreement, if any, (ix) any fees charged by nationally recognized statistical
rating organizations for the Rating of the Securities, (x) the fees and
expenses, if any, incurred with respect to the listing of the Underwritten
Securities, or the Common Shares issuable on conversion of the Preferred Shares,
if any, on any national securities exchange, and (x) the fees and expenses, if
any, incurred with respect to any filing with the National Association of
Securities Dealers, Inc.
If the applicable Terms Agreement is terminated by you in accordance
with the provisions of Section 5, Section 9(b)(i) or 9(b)(ii), the Company shall
reimburse the Underwriters named in such Terms Agreement for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
Section 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters to purchase Underwritten Securities pursuant to
the applicable Terms Agreement are subject to the accuracy of the
representations and warranties of the Company and the Operating Partnership
herein contained, to the accuracy of the statements of the Company's officers on
behalf of the Company, and on behalf of the Company in its capacity as indirect
general partner of the Operating Partnership, made in any certificate pursuant
to the provisions hereof, to the performance by each of the Company and the
Operating Partnership of all of its covenants and other obligations hereunder,
and to the following further conditions:
(a) At Closing Time, (i) no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, (ii) if
Preferred Shares are being offered, the rating assigned by any nationally
recognized statistical rating organization to any preferred stock of the Company
as
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of the date of the applicable Terms Agreement shall not have been lowered since
such date nor shall such rating organization have publicly announced that it has
placed any preferred stock of the Company on what is commonly termed a "watch
list" for possible downgrading, and (iii) there shall not have come to your
attention any facts that would reasonably cause you to believe that the
Prospectus, together with the applicable Prospectus Supplement, at the time it
was required to be delivered to purchasers of the Underwritten Securities,
included an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in light of the
circumstances existing at such time, not misleading.
(b) At Closing Time, you shall have received:
(1) The favorable opinion, dated as of Closing Time, of Hogan
& Hartson L.L.P., counsel for the Company and the Operating
Partnership, in form and substance satisfactory to counsel for the
Underwriters, to the effect that:
(i) The Company has been duly organized and is
validly existing and in good standing as a real estate
investment trust under the laws of the State of Alabama.
(ii) Each of CPHC and the Management Corporation was
incorporated and is validly existing and in good standing
under the laws of the State of Alabama. CPHC is authorized to
transact business as a foreign corporation in the States of
Delaware, Florida, Georgia, Mississippi, North Carolina, South
Carolina, Tennessee and Texas and the Commonwealth of Virginia
as of the dates of the respective certificates specified in
such opinion. The Management Corporation is authorized to
transact business in the States of Florida and Georgia as of
the dates of the respective certificates specified in such
opinion.
(iii) Each of the Operating Partnership and the
Management Partnership was formed and is validly existing as a
partnership under the laws of the State of Delaware as of the
dates of the respective certificates specified in such
opinion. Each of the Operating Partnership and the Management
Partnership is in good standing under the laws of the State of
Delaware as of the dates of the respective certificates
specified in such opinion. Based solely on certificates of
public officials, each of the Operating Partnership and the
Management Partnership is registered to do business in
Alabama, and the Operating Partnership is authorized to
transact business in the States of Florida, Georgia,
Mississippi, North Carolina, South Carolina, Tennessee and
Texas and the Commonwealth of Virginia as of the dates of the
respective certificates specified in such opinion. The
Management Partnership is authorized to transact business in
the States of Florida, Georgia, Mississippi, North Carolina,
South Carolina, Tennessee and
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Texas and the Commonwealth of Virginia as of the dates of
the respective certificates specified in such opinion.
(iv) Each of the Company, CPHC and the Management
Corporation has full trust or corporate power to own, lease or
operate the Properties and to conduct its business as
described in the Prospectus. The Management Partnership has
the partnership power and partnership authority under its
partnership agreement and the Delaware Revised Uniform Limited
Partnership Act (the "Delaware Act") to conduct its business
as described in the Prospectus. The Operating Partnership has
the partnership power and partnership authority under the
Agreement of Limited Partnership and the Delaware Act to own,
lease and operate the Properties and to conduct its business
as described in the Prospectus.
(v) The Company has an authorized capitalization as
set forth in the Prospectus under the captions "Description of
Preferred Shares of Beneficial Interest" and "Description of
Common Shares of Beneficial Interest," and all of the issued
shares of beneficial interest of the Company as set forth in
the Prospectus have been duly authorized and, assuming receipt
of consideration therefor as provided in the resolutions
authorizing issuance thereof of the Company's Board of
Trustees, are validly issued, fully paid and non-assessable.
All of the issued shares of capital stock of CPHC and the
Management Corporation have been duly authorized and, assuming
receipt of consideration therefor as provided in the
applicable resolutions authorizing the issuance thereof of the
board of directors of each such subsidiary, are validly
issued, fully paid and non-assessable. All of the outstanding
partnership interests of the Operating Partnership and the
Management Partnership have been authorized for issuance, are
validly issued and, assuming receipt of the consideration
therefor as provided in the respective partnership agreements
and any resolutions authorizing issuance thereof, are fully
paid.
(vi) Except as set forth in the Prospectus, to such
counsel's knowledge, there are no preemptive or other rights
to subscribe for or to purchase, nor any restriction upon the
voting or transfer of, any Underwritten Securities pursuant to
the Company's declaration of trust or the Company's by-laws or
any agreement or other instrument to which the Company is a
party.
(vii) Each of this Agreement, the applicable Terms
Agreement and the Delayed Delivery Contracts, if any, has been
duly authorized, executed and delivered on behalf of the
Company.
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(viii) This Agreement has been duly authorized,
executed and delivered by the Operating Partnership.
(ix) The Underwritten Securities being issued and
sold pursuant to this Agreement and the applicable Terms
Agreement have been duly and validly authorized by all
necessary corporate action on the part of the Company; and
such Underwritten Securities, when issued and delivered by the
Company pursuant to this Agreement against payment of the
consideration set forth in such Terms Agreement or any Delayed
Delivery Contract, will be validly issued, fully paid and
non-assessable, and, if applicable, the Preferred Shares, as
the case may be, conform to the provisions set forth by the
Board of Trustees.
(x) If applicable, the Common Share Warrants have
been duly authorized and, when issued and delivered pursuant
to this Agreement and countersigned by the Warrant Agent as
provided in the Warrant Agreement, will have been duly
executed, countersigned, issued and delivered and will
constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Warrant
Agreement under which they are to be issued.
(xi) If applicable, the Common Shares issuable upon
conversion of any of the Preferred Shares or the exercise of
Warrant Securities have been duly and validly authorized and
reserved for issuance upon such conversion or exercise by all
necessary action on the part of the Company and such shares,
when issued upon such conversion in accordance with the
charter of the Company, the Warrant Agreement, the Terms
Agreement and the Delayed Delivery Contract, as the case may
be, will be duly authorized and validly issued and will be
fully paid and non-assessable, and the issuance of such shares
upon such conversion will not be subject to preemptive or
other similar rights arising by operation of law or otherwise.
(xii) The applicable Warrant Agreement, if any, has
been duly authorized, executed and delivered by the Company,
and (assuming due authorization, execution and delivery by the
Warrant Agent in the case of the Warrant Agreement),
constitutes a valid and legally binding agreement of the
Company enforceable in accordance with its terms; and the
Warrant Agreement, if any, conforms in all material respects
to all statements relating thereto contained in the
Prospectus.
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(xiii) If applicable, the relative rights,
preferences, interests and powers of the Preferred Shares, as
the case may be, are as set forth by the Board of Trustees
relating thereto, and all such provisions are valid under
Alabama law.
(xiv) Except as set forth in the Prospectus, to such
counsel's knowledge, based on an officer's certificate from
the Company, there are no proceedings before or by any court,
governmental agency, or arbitrator pending or threatened
against the Company or any of its Subsidiaries which, if
determined adversely to the Company or any of its
Subsidiaries, would have a material adverse effect on the
financial condition, results of operations or business of the
Company and its Subsidiaries, considered as one enterprise.
(xv) The Registration Statement was declared
effective under the 1933 Act as of the date and time specified
in such opinion, the Prospectus was filed with the Commission
pursuant to Rule 424 of the 1933 Act Regulations on the date
specified in such opinion, and, to the best of such counsel's
knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for
that purpose is pending or threatened by the Commission.
(xvi) The Registration Statement and the Prospectus,
excluding the documents incorporated by reference therein, as
of their respective effective or issue dates (other than the
financial statements and supporting schedules included therein
or omitted therefrom, and other financial information and data
included therein or omitted therefrom, as to which such
counsel need not express an opinion) complied as to form in
all material respects with the requirements of the 1933 Act
and the rules and regulations thereunder.
(xvii) The documents incorporated by reference in the
Prospectus (other than the financial statements and supporting
schedules and other financial information and data included
therein or omitted therefrom, as to which such counsel need
not express an opinion), when they became effective or were
filed with the Commission, as the case may be, complied as to
form in all material respects with the requirements of the
1934 Act and the rules and regulations promulgated thereunder.
(xviii) The Company has qualified as a REIT for its
taxable years ended December 31, 1993, December 31, 1994,
December 31, 1995, December 31, 1996 and December 31, 1997 and
the Company is organized and operates in a manner
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that will enable it to qualify to be taxed as a REIT under
the Code for the taxable year ended December 31, 1998 and
thereafter provided the Company continues to meet the asset
composition, source of income, shareholder diversification,
distributions, record keeping, and other requirements of the
Code which are necessary for the Company to qualify as a
REIT.
(xix) The statements contained in the Prospectus
under the heading "Description of Common Shares of Beneficial
Interest," insofar as they describe Alabama statutory law
governing real estate investment trusts organized under the
laws of the State of Alabama, constitute a fair summary
thereof.
(xx) The Underwritten Securities, Warrant Securities
and the Common Shares issuable upon conversion of the
Preferred Shares conform in all material respects to the
description thereof contained in the Prospectus, and the form
of certificate used to evidence the Underwritten Securities
complies in all material respects with all applicable
statutory requirements under the laws of the State of Alabama.
(xxi) To such counsel's knowledge, there are no
contracts or other documents entered into subsequent to July
30, 1997 which are required to be described in the Prospectus
or filed as exhibits to the Registration Statement by the 1933
Act or by the 1933 Act Regulations which have not been
described or filed as exhibits to the Registration Statement
or incorporated therein by reference as permitted by the 1933
Act Regulations.
(xxii) The execution, delivery and performance as of
the date hereof by the Company and the Operating Partnership
of the Underwriting Agreement and the Terms Agreement, do not
(i) result in a breach of or a default under any of the
agreements filed as Exhibits 10.1, 10.2.1, 10.2.2, 10.2.3,
10.2.4, 10.2.5, 10.2.6, 10.2.7, 10.6, 10.13 and 10.17 to the
Company's Annual Report on Form 10-K for the year ended
December 31, 1997, (ii) violate the provisions of the
declaration of trust, articles of incorporation, charter,
partnership agreement or by-laws of the Company, CPHC, the
Operating Partnership, the Management Partnership or the
Management Corporation, or (iii) to such counsel's knowledge,
violate any order, statute, rule or regulation of any federal
or Delaware or Alabama court or governmental agency or body
having jurisdiction over the Company or any of its
subsidiaries or any of the Properties. The foregoing opinion
shall not be deemed to address any federal securities law
matters specifically covered elsewhere in such counsel's
opinion letter. Except for the registration of the
Underwritten Securities under the 1933 Act and such filings,
consents, approvals,
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<PAGE>
authorizations, registrations or qualifications as have been
made or obtained prior to the date of such counsel's
opinion, or may be required under the 1934 Act, the
Investment Company Act of 1940, as amended, and applicable
state securities laws (as to which such counsel need not
express an opinion) in connection with the purchase and
distribution of the Underwritten Securities, no consent,
approval, authorization or order of, or filing or
registration with, the Commission or any Delaware or Alabama
court or governmental agency or body is required to be
obtained or made by the Company for the execution, delivery
and performance of the Underwriting Agreement and the
applicable Terms Agreement by the Company and the Operating
Partnership, and the consummation of the transactions
contemplated thereby.
(xxiii) Neither the Company nor any of its
Subsidiaries is an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
(2) The favorable opinion, dated as of Closing Time, of
Leitman, Siegal, Payne & Campbell, P.C., special real estate counsel to
the Company, in form and substance satisfactory to counsel for the
Underwriters, to the effect that:
(i) The issuance and sale of the Shares being
delivered on such Date of Delivery by the Company and the
compliance by the Company and the Operating Partnership with
all the provisions of this Agreement and the consummation of
the transactions contemplated hereby did not and will not
result in a breach or violation of any of the terms of
provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon
any of the Properties or any other properties or assets of the
Company or any of its Subsidiaries pursuant to, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or any
of its Subsidiaries is a party or by which the Company or any
of its Subsidiaries is bound or to which any of the Properties
is subject.
(ii) The descriptions of or references to any
contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments described or referred to in the
Registration Statement or the Prospectus or to be filed as
exhibits thereto other than those described or referred to
therein or filed as exhibits thereto, are correct in all
material respects, and, to the best of their knowledge and
information, no default exists in the due performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument so described,
referred to or filed which would have a material
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<PAGE>
adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the
Company and its Subsidiaries considered as one enterprise.
(3) The favorable opinion, dated as of Closing Time, of Brown
& Wood LLP, counsel for the Underwriters, with respect to the matters
set forth in (i), (vii) to (xiii), inclusive, (xv) and (xvi) of
subsection (b)(1).
(4) In giving their opinions required by subsections (b)(1),
(b)(2) and (b)(3), respectively, of this Section, Hogan & Hartson
L.L.P., Leitman, Siegal, Payne & Campbell, P.C. and Brown & Wood LLP
shall each additionally state that nothing has come to their attention
that causes them to believe that the Registration Statement (except for
financial statements and schedules and other financial data, as to
which counsel need make no statement) at the time it became effective
(or, if an amendment to the Registration Statement or an Annual Report
on Form 10-K has been filed by the Company with the Commission
subsequent to the effectiveness of the Registration Statement, then at
the time such amendment becomes effective or at the time of the most
recent filing of such Annual Report, as the case may be) or at the
Representation Date, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading or
that the Prospectus or any amendment or supplement thereto (except for
financial statements and schedules and other financial data, as to
which counsel need make no statement), at the Representation Date or at
Closing Time, included or includes an untrue statement of a material
fact or omitted or omits 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 giving their opinions required
by subsections (b)(1), (b)(2) and (b)(3), respectively, of this
Section, Hogan & Hartson L.L.P., Leitman, Siegal, Payne & Campbell,
P.C. and Brown & Wood LLP may rely, (1) as to all matters of fact, upon
certificates and written statements of officers and employees of and
accountants for the Company and Operating Partnership, (2) with respect
to certain other matters, upon certificates of appropriate government
officials in such jurisdiction, and Hogan & Hartson L.L.P. and Brown &
Wood llp may additionally rely, as to matters involving the laws of the
State of Alabama, upon the opinion of Sirote & Permutt P.C. (or other
counsel reasonably satisfactory to counsel for the Underwriters) in
form and substance satisfactory to counsel for the Underwriters.
(c) At Closing Time, there shall not have been, since the date of the
applicable Terms Agreement or since the respective dates as of which information
is given in the Prospectus, any material adverse change in the condition,
financial or otherwise, or the earnings, business affairs or business prospects
of the Company and its Subsidiaries considered as one enterprise, or any of the
Properties, whether or not arising in the ordinary course of business; no
proceedings shall be pending or, to the knowledge of the Company, or the
Operating Partnership, threatened against the Company, any of its Subsidiaries,
or any of the Properties before or by any Federal, state or other commission
board or administrative agency wherein an unfavorable decision, ruling or
24
<PAGE>
finding would materially and adversely affect the business, property, financial
condition or income of the Company and its Subsidiaries, considered as one
enterprise or any of the Properties; and you shall have received a certificate
of the President and Chief Executive Officer or a Vice President of the Company
and of the Senior Vice President and Secretary of the Company, and a certificate
of the Secretary of CPHC in its capacity as general partner of the Operating
Partnership, dated as of such Closing Time, to the effect that (i) there has
been no such material adverse change and (ii) the representations and warranties
in Section 1 are true and correct with the same force and effect as though such
Closing Time were a Representation Date. As used in this Section 5(c), the term
"Prospectus" means the Prospectus in the form first used to confirm sales of the
Underwritten Securities.
(d) At the time of the execution of the applicable Terms Agreement, you
shall have received a letter dated such date from Coopers & Lybrand L.L.P., in
form and substance reasonably satisfactory to you, to the effect that (i) they
are independent public accountants with respect to the Company and its
Subsidiaries within the meaning of the 1933 Act and the 1933 Act Regulations
thereunder; (ii) it is their opinion that the consolidated financial statements
and financial statement schedules of the Company and its Subsidiaries included
or incorporated by reference in the Registration Statement and the Prospectus
and audited by them and covered by their opinions therein comply as to form in
all material respects with the applicable accounting requirements of the 1933
Act and the 1933 Act Regulations; (iii) they have performed limited procedures,
not constituting an audit, including a reading of the latest available unaudited
interim consolidated financial statements of the Company, a reading of the
minute books of the Company, inquiries of certain officials of the Company who
have responsibility for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, and on the basis of
such limited review and procedures (which shall include, without limitation, the
procedures specified by the American Institute of Certified Public Accountants
for a review of interim financial information as described in SAS No. 71,
Interim Financial Information, with respect to the unaudited condensed
consolidated financial statement of the Company and its Subsidiaries included or
incorporated by reference in the Registration Statement), nothing has come to
their attention which causes them to believe (A) that any material modifications
should be made to the unaudited condensed financial statements of the Company
and its Subsidiaries included in the Registration Statement for them to be in
conformity with generally accepted accounting principles or that such unaudited
financial statements do not comply as to form in all material respects with the
applicable accounting requirements of the 1934 Act and the 1934 Act Regulations,
or (B) at a specified date not more than three days prior to Closing Time, there
has been any change in the capital shares of the Company or in the consolidated
indebtedness of the Company and its Subsidiaries or any decrease in consolidated
total assets or net assets of the Company, as compared with the amounts shown in
the most recent consolidated balance sheet included or incorporated by reference
in the Registration Statement and the Prospectus or, during the period from the
date of the most recent consolidated statement of operations included or
incorporated by reference in the Registration Statement and the Prospectus to a
specified date not more than three days prior to Closing Time, there were any
decreases, as compared with the corresponding period in the preceding year, in
consolidated revenues, operating income, net income or net income per share of
the Company and its Subsidiaries, except in all instances for
25
<PAGE>
changes, increases or decreases which the Registration Statement and the
Prospectus disclose have occurred or may occur; (iv) they have compared the
information in the Prospectus under selected captions with the disclosure
requirements of Regulation S-K and on the basis of limited procedures specified
in such letter nothing came to their attention as a result of the foregoing
procedures that caused them to believe that this information does not conform in
all material respects with the disclosure requirements of Items 301 and 302,
respectively, of Regulation S-K; and (v) in addition to the examination referred
to in their opinion and the limited procedures referred to in clause (iii)
above, they have carried out certain specified procedures, not constituting an
audit, with respect to certain amounts, percentages and financial information
which are included or incorporated by reference in the Registration Statement
and Prospectus and which are specified by you, and have found such amounts,
percentages and financial information to be in agreement with the relevant
accounting, financial and other records of the Company and its Subsidiaries
identified in such letter.
(e) At Closing Time, you shall have received a letter, dated as of
Closing Time, from Coopers & Lybrand L.L.P., to the effect that they reaffirm
the statements made in the letter furnished pursuant to subsection (d) of this
Section, except that the "specified date" referred to shall be a date not more
than three days prior to such Closing Time.
(f) At Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require for
the purpose of enabling them to pass upon the issuance and sale of the
Underwritten Securities and the Warrant Securities as herein contemplated and
related proceedings, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company and the Operating
Partnership in connection with the issuance and sale of the Underwritten
Securities and the Warrant Securities, as herein contemplated shall be
reasonably satisfactory in form and substance to you and counsel for the
Underwriters.
(g) In the event that the Underwriters exercise their option provided
in a Terms Agreement as set forth in Section 2(b) hereof to purchase all or any
portion of the Option Securities, the representations and warranties of the
Company and the Operating Partnership contained herein and the statements in any
certificates furnished by the Company and the Operating Partnership hereunder
shall be true and correct as of each Date of Delivery and, at the relevant Date
of Delivery, you shall have received:
(1) A certificate, dated such Date of Delivery, of the
President and Chief Executive Officer or a Vice President of the
Company and of the chief financial or chief accounting officer of the
Company and of the President and Chief Executive Officer of CPHC, in
its capacity as general partner of the Operating Partnership,
confirming that the certificates delivered at the Closing Time pursuant
to Section 5(c) hereof remain true and correct as of such Date of
Delivery.
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<PAGE>
(2) The favorable opinion of Hogan & Hartson L.L.P., counsel
for the Company and the Operating Partnership, in form and substance
reasonably satisfactory to counsel for the Underwriters, dated such
Date of Delivery, relating to the Option Securities to be purchased on
such Date of Delivery and otherwise to the same effect as the opinion
required by Sections 5(b)(1) and 5(b)(4) hereof.
(3) The favorable opinion of Leitman, Siegal, Payne &
Campbell, P.C., special real estate counsel to the Company, in form and
substance reasonably satisfactory to counsel for the Underwriters,
dated such Date of Delivery, relating to the Option Securities to be
purchased on such Date of Delivery and otherwise to the same effect as
the opinion required by Sections 5(b)(2) and 5(b)(4) hereof.
(4) The favorable opinion of Brown & Wood LLP, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Sections 5(b)(3) and 5(b)(4)
hereof.
(5) A letter from Coopers & Lybrand L.L.P., in form and
substance reasonably satisfactory to you and dated such Date of
Delivery, substantially the same in form and substance as the letter
furnished to you pursuant to Section 5(e) hereof, except that the
"specified date" in the letter furnished pursuant to this Section
5(g)(4) shall be a date not more than three days prior to such Date of
Delivery.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, the applicable Terms Agreement
may be terminated by you by notice to the Company at any time at or prior to the
Closing Time or Date of Delivery, as the case may be, and such termination shall
be without liability of any party to any other party except as provided in
Section 4 hereof.
Section 6. INDEMNIFICATION. The Company and the Operating Partnership,
jointly and severally, hereby agree to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act as follows:
(1) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the
information deemed to be part of the Registration Statement pursuant to
Rule 430A(b) or Rule 434 of the 1933 Act Regulations, if applicable, or
the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus (or any
amendment or supplement thereto) or the omission, or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
27
<PAGE>
(2) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, if such
settlement is effected with the written consent of the indemnifying
party; and
(3) against any and all expense whatsoever (including, the
fees and disbursements of counsel chosen by you) reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceedings by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (1) or
(2) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through you expressly for use in the Registration Statement (or any
amendment thereto) and the Prospectus (or any amendment or supplement thereto).
Each Underwriter severally agrees to indemnify and hold harmless the
Company and the Operating Partnership, the trustees of the Company, each of the
officers who signed the Registration Statement and each person, if any, who
controls the Company or the Operating Partnership within the meaning of Section
15 of the 1933 Act (including the directors and officers of CPHC), against any
and all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through you expressly
for use in the Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto).
Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of such
action. If it so elects within a reasonable time after receipt of such notice,
an indemnifying party, jointly with any other indemnifying parties receiving
such notice, may assume the defense of such action with counsel chosen by it and
approved by the indemnified parties defendant in such action, unless such
indemnified parties reasonably object to such assumption on the ground that
there may be legal defenses available to them which are different from or in
addition to those available to such indemnifying party. If an indemnifying party
28
<PAGE>
assumes the defense of such action, the indemnifying parties shall not be liable
for any fees and expenses of counsel for the indemnified parties incurred
thereafter in connection with such action. In no event shall the indemnifying
parties be liable for fees and expenses of more than one counsel (in addition to
any local counsel) separate from their own counsel for all indemnified parties
in connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.
For purposes of this Section 6, all references to the Registration
Statement, any preliminary prospectus or the Prospectus, or any amendment or
supplement to any of the foregoing, shall be deemed to include, without
limitation, any electronically transmitted copies thereof, including, without
limitation, any copies filed with the Commission pursuant to EDGAR.
Section 7. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company, the Operating
Partnership and the Underwriters with respect to the offering of the
Underwritten Securities shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by said indemnity
agreement incurred by the Company, the Operating Partnership and one or more of
the Underwriters in respect of such offering, as incurred, in such proportions
that the Underwriters are responsible for that portion represented by the
percentage that the underwriting discount appearing on the cover page of the
Prospectus in respect of such offering bears to the initial public offering
price appearing thereon and the Company and the Operating Partnership are
responsible for the balance; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Underwritten Securities
purchased by it pursuant to the applicable Terms Agreement and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay in respect of such losses,
liabilities, claims, damages and expenses. For purposes of this Section, each
person, if any, who controls an Underwriter within the meaning of Section 15 of
the 1933 Act shall have the same rights to contribution as such Underwriter, and
each trustee of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company or the
Operating Partnership within the meaning of Section 15 of the 1933 Act shall
have the same rights to contribution as the Company and the Operating
Partnership. The Underwriter's obligations to contribute pursuant to this
Section 7 are several in proportion to their respective underwriting commitments
and not joint. For purposes of this Section 7, the Company and the Operating
Partnership shall be deemed one party jointly and severally liable for any
obligations hereunder.
Section 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement or the applicable Terms
29
<PAGE>
Agreement, or contained in certificates of officers of the Company and the
Operating Partnership submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any termination of this Agreement or the
applicable Terms Agreement, or investigation made by or on behalf of any
Underwriter or any controlling person, or by or on behalf of the Company or the
Operating Partnership, and shall survive delivery of and payment for the
Underwritten Securities.
Section 9. TERMINATION OF AGREEMENT. This Agreement (excluding the
applicable Terms Agreement) may be terminated for any reason at any time by the
Company, the Operating Partnership or by you upon the giving of 30 days' written
notice of such termination to the other parties hereto.
You may also terminate the applicable Terms Agreement, by notice to the
Company, at any time at or prior to the Closing Time (i) if there has been,
since the date of such Terms Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company, any of its Subsidiaries or the Operating
Partnership, whether or not arising in the ordinary course of business, or (ii)
if Preferred Shares are being offered and the rating assigned by any nationally
recognized statistical rating organization to any preferred stock of the Company
as of the date of the applicable Terms Agreement shall have been lowered since
such date or if any such rating organization shall have publicly announced that
it has placed any preferred stock of the Company on what is commonly termed a
"watch list" for possible downgrading; (iii) if there has occurred any material
adverse change in the financial markets in the United States or elsewhere or any
outbreak of hostilities or escalation thereof or other calamity or crisis the
effect of which is such as to make it, in your judgment, impracticable to market
the Underwritten Securities or enforce contracts for the sale of the
Underwritten Securities, or (iv) if trading in any of the securities of the
Company has been suspended or limited by the Commission or the New York Stock
Exchange, or if trading generally on either the New York Stock Exchange or the
American Stock Exchange has been suspended or limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices for securities
have been required, by either of said Exchanges or by order of the Commission or
any other governmental authority, or if a banking moratorium has been declared
by either Federal, New York or Alabama authorities. As used in this Section
9(b), the term "Prospectus" means the Prospectus in the form first used to
confirm sales of the Underwritten Securities.
In the event of any such termination, (x) the covenants set forth in
Section 3 with respect to any offering of Underwritten Securities shall remain
in effect so long as any Underwriter owns any such Underwritten Securities
purchased from the Company pursuant to the applicable Terms Agreement and (y)
the covenant set forth in Section 3(h) hereof, the provisions of Section 4
hereof, the indemnity and contribution agreements set forth in Sections 6 and 7
hereof, and the provisions of Sections 8 and 13 hereof shall remain in effect.
Section 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more
of the Underwriters shall fail at the Closing Time to purchase the Underwritten
Securities which it or
30
<PAGE>
they are obligated to purchase under the applicable Terms Agreement (the
"Defaulted Securities"), then you shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, you shall not have completed such
arrangements within such 24-hour period, then:
if the total number of Defaulted Securities does not exceed 10% of the
total number of Underwritten Securities to be purchased pursuant to such Terms
Agreement, the non-defaulting Underwriters named in such Terms Agreement shall
be obligated, severally and not jointly, to purchase the full amount thereof in
the proportions that their respective underwriting obligations hereunder bear to
the underwriting obligations of all non-defaulting Underwriters, or
if the total number of Defaulted Securities exceeds 10% of the total
number of Underwritten Securities to be purchased pursuant to such Terms
Agreement, the applicable Terms Agreement shall terminate without liability on
the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default under this Agreement and
the applicable Terms Agreement.
In the event of any such default which does not result in a termination
of the applicable Terms Agreement, either you or the Company shall have the
right to postpone the Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or the
Prospectus or in any other documents or arrangements.
Section 11. NOTICES. 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 directed c/o Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, World Financial Center, North Tower, 250 Vesey
Street, New York, New York 10281-1326, attention of John P. Case, Vice
President; and notices to the Company shall be directed to it at 2101 6th Avenue
North, Suite 750, Birmingham, Alabama, attention: Chief Financial Officer.
Section 12. PARTIES. This Agreement and the applicable Terms Agreement
shall each inure to the benefit of and be binding upon you and the Company, the
Operating Partnership and any Underwriter who becomes a party to such Terms
Agreement, and their respective successors. Nothing expressed or mentioned in
this Agreement or the applicable Terms Agreement is intended or shall be
construed to give any person, firm or corporation, other than those referred to
in Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or such
Terms Agreement or any provision herein or therein contained. This Agreement and
the applicable Terms Agreement and all conditions and provisions hereof and
thereof are intended to be for the sole and exclusive benefit of the parties
hereto and thereto and their respective successors and said controlling persons
and officers and directors and their heirs and legal representatives, and for
the benefit of
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no other person, firm or corporation. No purchaser of Underwritten Securities
from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
Section 13. GOVERNING LAW AND TIME. This Agreement and the applicable
Terms Agreement shall be governed by and construed in accordance with the laws
of the State of New York applicable to agreements made and to be performed in
said State. Specified times of day refer to New York City time.
Section 14. COUNTERPARTS. This Agreement and the applicable Terms
Agreement may be executed in one or more counterparts, and if executed in more
than one counterpart the executed counterparts shall constitute a single
instrument.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts will become a binding agreement
between you, the Company and the Operating Partnership in accordance with its
terms.
Very truly yours,
COLONIAL PROPERTIES TRUST
By:
---------------------------------
Name:
Title:
COLONIAL REALTY LIMITED PARTNERSHIP,
the Operating Partnership
By: Colonial Properties Holding
Company, Inc.
(its general partner)
By:
--------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first
above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
- ---------------------------------------
Name:
Title:
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Exhibit 1.2
COLONIAL PROPERTIES TRUST
(an Alabama Real Estate Investment Trust)
Common Shares
TERMS AGREEMENT
Dated: April 21, 1998
To: COLONIAL PROPERTIES TRUST
2101 6th Avenue North
Suite 750
Birmingham, Alabama
Attention: Chairman of the Board of Trustees
Ladies and Gentlemen:
We (the "Underwriter") understand that Colonial Properties Trust, an
Alabama real estate investment trust (the "Company"), proposes to issue and
sell 3,000,000 common shares of beneficial interest, $.01 par value (the
"Common Shares") (such Common Shares being hereinafter referred to as the
"Underwritten Securities"). Subject to the terms and conditions set forth or
incorporated by reference herein, we offer to purchase the number of Initial
Underwritten Securities (as defined in the Underwriting Agreement referred to
below) set forth below opposite our name.
<PAGE>
<TABLE>
<CAPTION>
Number of Shares
of Initial
Underwriter Underwritten Securities
- ----------- -----------------------
<S> <C>
Merrill Lynch & Co. 3,000,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated
</TABLE>
The Underwritten Securities shall have the following terms:
<TABLE>
<CAPTION>
<S> <C>
Title of Securities: Common Shares
Number of Shares: 3,000,000
Public offering price per share: $30.125
Purchase price per share: $28.615; provided, however, that
the amount paid by the Underwriter
for any Option Securities shall be
reduced by an amount per share
equal to any distribution declared
by the Company and payable on the
Initial Underwritten Securities but
not payable on such Option Securities.
Number of Option Securities,
if any, that may be purchased
by the Underwriter: 450,000
Additional co-managers, if any: None
Closing date and location: April 27, 1998, at 9:00 A.M., New York
City time, at Brown & Wood LLP, One
World Trade Center, New York, New York
10048-0557
</TABLE>
All the provisions contained in the document attached as Annex A hereto
entitled "Colonial Properties Trust - Preferred Shares, Common Shares, and
Common Share Warrants - Underwriting Agreement" are hereby incorporated by
reference in their entirety herein and shall be deemed to be a part of this
Terms Agreement to the same extent as if such provisions had been set forth
in full herein. Terms defined in such document are used herein as therein
defined.
2
<PAGE>
Please accept this offer no later than seven o'clock P.M. (New York City
time) on April 21, 1998, by signing a copy of this Terms Agreement in the
space set forth below and returning the signed copy to us.
Very truly yours,
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:---------------------------------
Name:
Title:
Accepted:
COLONIAL PROPERTIES TRUST
By:
--------------------------
Name:
Title:
3
<PAGE>
Exhibit 5.1
[LETTERHEAD OF HOGAN & HARTSON L.L.P.]
April 27, 1998
Board of Trustees
Colonial Properties Trust
2101 Sixth Avenue North
Suite 750
Birmingham, Alabama 35202
Ladies and Gentlemen:
We are acting as counsel to Colonial Properties Trust, an Alabama real
estate investment trust (the "Company"), in connection with its registration
statement on Form S-3 (SEC File No. 333-38613) (the "Registration
Statement"), previously declared effective by the Securities and Exchange
Commission, relating to the proposed public offering of securities of the
Company that may be offered and sold by the Company from time to time as set
forth in a prospectus that forms a part of the Registration Statement, and as
to be set forth in one or more supplements to a prospectus. This opinion
letter is rendered in connection with the proposed offering of up to
3,450,000 common shares of beneficial interest, par value $.01 per share (the
"Shares"), of the Company, as described in a Prospectus dated November 21,
1997 (the "Prospectus"), and a Prospectus Supplement dated April 21, 1998
(the "Prospectus Supplement"). This opinion letter is furnished to you at
your request to enable you to fulfill the requirements of Item 601(b)(5) of
Regulation S-K, 17 C.F.R. Sections 229.601(b)(5), in connection with the
Registration Statement.
For purposes of this opinion letter, we have examined copies of the
following documents:
1. An executed copy of the Registration Statement.
2. The Prospectus and the Prospectus Supplement.
3. The Declaration of Trust of the Company, as certified by the Secretary
of the Company on the date hereof as being complete, accurate and in
effect.
<PAGE>
Board of Trustees
Colonial Properties Trust
April 27, 1998
Page 2
4. The Bylaws of the Company, as certified by the Secretary of the
Company on the date hereof as being complete, accurate and in effect.
5. Certain resolutions of the Board of Trustees of the Company
(the "Board") adopted at a meeting held on October 23, 1997,
authorizing the preparation, execution and filing of the
Registration Statement, as certified by the Secretary of the Company
on the date hereof as being complete, accurate and in effect.
6. Certain resolutions of the Pricing Committee of the Board adopted by
written consent of the sole member on April 21, 1998, as certified
by the Secretary of the Company on the date hereof as being
complete, accurate and in effect, relating to, among other things,
authorization of the Agreements (as defined below), and arrangements
in connection therewith, and the issuance of the Shares on the terms
set forth therein.
7. Executed copies of the Underwriting Agreement dated April 21,
1998, by and among Colonial Properties Trust, Colonial Realty
Limited Partnership and Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated (the "Underwriting Agreement"), and the
related Terms Agreement dated April 21, 1998, by and between
Colonial Properties Trust and Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated (the "Terms Agreement," and,
collectively with the Underwriting Agreement, the "Agreements").
8. Opinion letter, of even date herewith, of Sirote & Permutt, P.C.,
special counsel to the Company in the State of Alabama.
In our examination of the aforesaid documents, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
accuracy and completeness of all documents submitted to us, the authenticity
of all original documents and the conformity to authentic original documents
of all documents submitted to us as copies (including telecopies). This
opinion letter is given, and all statements herein are made, in the context
of the foregoing.
<PAGE>
Board of Trustees
Colonial Properties Trust
April 27, 1998
Page 3
This opinion letter is based as to matters of law solely on the Alabama
Real Estate Investment Trust Act of 1995, and we express no opinion herein as
to any other laws, statutes, regulations or ordinances. In rendering this
opinion letter, we are relying, to the extent that the laws of Alabama are
relevant (without any independent verification or investigation), upon the
opinion letter of Sirote & Permutt, P.C., special counsel to the Company in
the State of Alabama, described in paragraph 8 above, with respect to the
matters addressed therein.
Based upon, subject to and limited by the foregoing, we are of the
opinion that, following issuance of the Shares pursuant to the terms of the
Agreements and receipt by the Company of the consideration for the Shares
specified in the resolutions of the Pricing Committee described in paragraph
6 above, the Shares will be validly issued, fully paid and nonassessable
under the Alabama Real Estate Investment Trust Act of 1995.
We assume no obligation to advise you of any changes in the foregoing
subsequent to the delivery of this opinion letter. This opinion letter has
been prepared solely in connection with the filing by the Company of a
Current Report on Form 8-K on the date hereof, which Form 8-K will be
incorporated by reference into the Registration Statement. This opinion
letter should not be quoted in whole or in part or otherwise be referred to,
nor filed with or furnished to any governmental agency or other person or
entity, without the prior written consent of this firm.
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to
the above-described Form 8-K and to the reference to this firm under the
caption "Legal Matters" in the Prospectus and the Prospectus Supplement. In
giving this consent, we do not thereby admit that we are an "expert" within
the meaning of the Securities Act of 1933, as amended.
Very truly yours,
HOGAN & HARTSON L.L.P.
<PAGE>
Exhibit 5.2
[LETTERHEAD]
April 27, 1998
Board of Trustees
Colonial Properties Trust
2101 Sixth Avenue North
Suite 750
Birmingham, AL 35202
RE: Colonial Properties Trust
Ladies and Gentlemen:
We have acted as special Alabama counsel to Colonial Properties Trust,
an alabama real estate investment trust (the "Company"), in connection with
its registration statement on Form S-3 (SEC File No. 33-38613) (the
"Registration Statement") previously declared effective by the Securities and
Exchange Commission relating to the proposed public offering of securities of
the Company that may be offered and sold by the Company from time to time as
set forth in a prospectus which forms a part of the Registration Statement,
and as to be set forth in one or more supplements to a prospectus. This
opinion letter is rendered in connection with the public offering of
3,450,000 common shares a beneficial interest, par value $.01 per share of
the Company (the "Shares"), as described in a prospectus dated November 21,
1997 (the "Prospectus"), and a Prospectus Supplement dated April 21, 1998
(the "Prospectus Supplement"). This opinion letter is furnished to you at
your request to enable you to fulfill the requirements of Item 601(b)(5) of
Regulations S-K, 17 C.F.R. Section 229.601(b)(5), in connection with the
Registration Statement.
For purposes of this opinion letter, we have examined copies of the
following documents:
1. Executed copy of the Registration Statement.
2. Copies of the Prospectus and Prospectus Supplement.
<PAGE>
Board of Trustees
Colonial Properties Trust
April 27, 1998
Page 2
3. The Declaration of Trust of the Company, as amended (the
"Declaration of Trust"), as certified by the Secretary of the Company on the
date hereof as then being complete, accurate and in effect.
4. The Bylaws of the Company, as certified by the Secretary of the
Company on the date hereof as then being complete, accurate and in effect.
5. Certain resolutions of the Board of Trustees of the Company adopted
at a meeting held on October 23, 1997, approving and ratifying the
preparation, execution and filing of the Registration Statement, as certified
by the Secretary of the Company on the date hereof as being complete,
accurate and in effect.
6. Certain resolutions of the Board of Trustees of the Company adopted
at a meeting held on October 23, 1997, and of the Pricing Committee of the
Board of Trustees adopted by written consent of the sole member on April 21,
1998, as certified by the Secretary of the Company on the date hereof as
being complete, accurate and in effect, relating to, among other things,
authorization of the Underwriting Agreement (as defined below) and the Terms
Agreement (as defined below) and arrangements in connection therewith, and
authorization of the issuance of the Shares on the Terms Agreement.
7. Executed copies of the Underwriting Agreement dated April 21, 1998
among the Company, Colonial Realty Limited Partnership (the "Operating
Partnership") and Merrill Lynch, Pierce, Fenner & Smith, Incorporated (the
"Underwriting Agreement") and the Terms Agreement dated April 21, 1998
between the Company and Merrill Lynch, Pierce, Fenner & Smith, Incorporated
(the "Term Agreement").
8. Opinion Letter, of even date herewith, of Hogan & Hartson L.L.P.,
counsel to the Company.
We have not, except as specifically identified above, made any
independent review or investigation of factual or other matters, including
the organization, existence, good standing, assets, business or affairs of
the Company. In our examination of the aforesaid documents, we have assumed
the genuineness of all signatures, the legal capacity of natural persons, the
authenticity, accuracy and completeness of all documents submitted to us as
originals, the conformity to the original documents of all documents
submitted to us as certified, telecopied, photostatic, or reproduced copies,
and the authenticity, accuracy and completeness of the originals.
<PAGE>
Board of Trustees
Colonial Properties Trust
April 27, 1998
Page 3
This opinion letter is based as to matters of law solely on the Alabama
Real Estate Investment Trust Act of 1995 and we express no opinion herein as
to any other laws, statutes, regulations, or ordinances.
Based upon, subject to, and limited by the foregoing, we are of the
opinion that following issuance of the Shares pursuant to the terms of the
Underwriting Agreement and receipt by the Company of the consideration for
the Shares specified in the resolutions of the Board of Trustees and the
Pricing Committee and as set forth in the Terms Agreement referred to above,
the Shares will be validly issued, fully paid and non-assessable under the
Alabama Real Estate Investment Trust Act of 1995.
In accordance with the general policies of this law firm in rendering
legal opinions, we have assumed for the purposes of the opinions expressed
herein that no fraud exists with respect to any of the matters relevant to
the opinions expressed herein, although we have no reason to believe that
there exists any fraud which would render invalid the opinions expressed
below.
We are members of the Bar of the State of Alabama, and we do not express
any opinion concerning any law other than the law of the State of Alabama and
the Federal law of the United States. We assume no obligation to advise you
of any changes in the foregoing subsequent to delivery of this opinion
letter. This opinion letter has been prepared solely in connection with the
filing by the Company of a Current Report on Form 8-K on the date hereof,
which Form 8-K will be incorporated by reference into the Registration
Statement. This opinion letter should not be quoted in whole or in part or
otherwise be referred to, nor filed with or furnished to any governmental
agency or other person or entity, without the prior written consent of this
firm.
We hereby consent to the filing of the opinion letter as Exhibit 5.2 to
the Form 8-K of the Company and to the reference to this firm under the
caption "Legal Matters" in the Prospectus constituting a part of the
Registration Statement. In giving this consent, we do not thereby admit that
we are an "expert" within the meaning of the Securities Act of 1933, as
amended.
Very truly yours,
/s/ Sirote & Permutt P.C.
