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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 Commission File Number: 1-12358
reported): MARCH 24, 1998
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 35202
SUITE 750 (Zip Code)
BIRMINGHAM, ALABAMA
(Address of principal executive offices)
(205) 250-8700
(Registrant's telephone number, including area code)
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:
Exhibit Document
1.1 Underwriting Agreement dated as of March 24, 1998, by and among
Colonial Properties Trust, Colonial Realty Limited Partnership
and Wheat First Securities, Inc.
1.2 Terms Agreement dated as of March 24 1998, by and among Colonial
Properties Trust and Wheat First Securities, Inc.
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
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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: March 24, 1998 By: /s/Douglas B. Nunnelley
-----------------------
Douglas B. Nunnelley,
Senior Vice President and
Secretary
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EXHIBIT INDEX
Exhibit Description Page
1.1 Underwriting Agreement dated as of March 24
1998, by and among Colonial Properties Trust,
Colonial Realty Limited Partnership and Wheat
First Securities, Inc.
1.2 Terms Agreement dated as of March 24 1998,
by and among Colonial Properties Trust and Wheat
First Securities, Inc.
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
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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
March 24, 1998
Wheat First Securities, Inc.
330 Commerce Street
Nashville, Tennessee 37201
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 "Board"). 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.
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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 (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 that 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 filed with the Securities and Exchange Commission (the
"Commission") on October 23, 1997, a registration statement on Form S-3 (No.
333-38613), which registers one or more series of (i) unsecured debt securities,
(ii) Preferred Shares, (iii) Common Shares, (iv) Warrant Securities and (v)
depository shares representing interests in the Preferred Shares, 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
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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
"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 that 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 that
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.
(a) 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 Form 10-K with the Commission,
complied, and as of each Representation Date will comply, in all
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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 Form 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 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 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
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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 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, whether directly or indirectly owned, including Colonial
Properties Holding Company, Inc. ("CPHC"), Colonial Properties Services,
Inc., and the Operating Partnership) 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
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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 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 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
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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.
(x) If the Prospectus contains a "Capitalization" section, the
authorized, issued and outstanding capital shares of the Company is as set
forth therein (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
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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 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.
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(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.
(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").
(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
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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
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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 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
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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 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
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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.
(b) 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 each Underwriter
participating in such offering as to the matters covered thereby on the date of
such certificate.
SECTION 2. PURCHASE AND SALE.
(a) 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.
(b) 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
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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.
(c) Payment of the purchase price for, and delivery of, the Underwritten
Securities to be purchased by the Underwriters shall be made at such place as
shall be agreed upon by you and the Company, at 9:00 A.M., 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. 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 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 Hunton & Williams, 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 to the Company by
certified or official bank check or checks in Federal or similar same-day funds
payable to the order of 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,
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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 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:
(a) 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 that 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 at the Commission 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
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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
on the business day immediately succeeding the date of the applicable Terms
Agreement.
(b) 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.
(c) 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 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 that
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.
(d) 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.
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(e) 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.
(f) 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.
(g) 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 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.
(h) 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
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Company's fiscal quarter next following the "effective date" (as defined in such
Rule 158) of the Registration Statement.
(i) 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.
(j) 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.
(k) 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.
(l) 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.
(m) 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.
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
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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 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:
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(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 was 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 the Operating Partnership and CPHC was organized
and is validly existing and is in good standing as a trust,
partnership or corporation (as indicated in such opinion or on a
schedule attached to such opinion) under the laws of its respective
jurisdiction of organization (as indicated in such opinion or on a
schedule attached to such opinion).
(iii) Based solely on certificates of public officials, each of
the Company, the Operating Partnership and CPHC is qualified to do
business in the jurisdictions indicated in such opinion or on a
schedule attached to such opinion.
(iv) Each of the Company and CPHC has full trust or corporate
power to own, lease or operate the Properties and 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 applicable Delaware law 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 have been duly authorized and, assuming
receipt of consideration therefor as provided in the resolutions
authorizing issuance thereof of the board of trustees of the Company,
are validly issued, fully paid and non-assessable. All of the issued
shares of capital stock of CPHC have been duly authorized and,
assuming receipt of consideration therefor as provided in the
applicable resolutions authorizing issuance thereof of the board of
directors of CPHC, are validly issued, fully paid and non-assessable.
All of the outstanding partnership interests of the Operating
Partnership have been authorized for issuance, are validly issued and,
assuming receipt of the consideration therefor as provided in the
Agreement of Limited Partnership and any resolutions authorizing
issuance thereof, are fully paid.
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(vi) Except as set forth in the Prospectus, to the knowledge
of counsel, 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 Bylaws 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.
(viii) This Agreement has been duly authorized, executed and
delivered on behalf of the Operating Partnership.
(ix) The issuance and sale of the Underwritten Securities 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.
(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.
(xii) The applicable Warrant Agreement, if any, has been duly
authorized, executed and delivered on behalf of 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.
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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) The Registration Statement became effective under the
1933 Act as of the dates specified in such opinion, the required
filing of the Prospectus pursuant to Rule 424(b) of the 1933 Act
Regulations has been made in the manner and within the time period
required by Rule 424(b), 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.
(xv) 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 and statistical information and data
included therein or omitted therefrom, as to which such counsel need
express no opinion), complied as to form in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations.
(xvi) The documents incorporated by reference in the
Prospectus (other than the financial statements and supporting
schedules included therein or omitted therefrom, and other financial
and statistical information and data included therein or omitted
therefrom, as to which such counsel need express no 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.
(xvii) The Company was organized and has operated in conformity
with the requirements for qualification and taxation as a real estate
investment trust ("REIT") under the Code for its taxable years ended
December 31, 1993, December 31, 1994, December 31, 1995, December 31,
1996 and December 31, 1997 and the Company's current organization and
method of operation will enable it to continue to meet the
requirements for qualification and taxation as a REIT.
(xviii) The statements contained in the Prospectus under the
captions "Description of Preferred Shares of Beneficial Interest" and
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"Description of Common Shares of Beneficial Interest," as applicable
to the Underwritten Securities, 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.
(xix) 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
under the applicable caption 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.
(xx) The execution, delivery and performance as of the date
hereof by the Company and the Operating Partnership of this Agreement,
and by the Company of the applicable 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, 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) to such
counsel's knowledge, violate the provisions of the charter,
partnership agreement or by-laws of the Company, CPHC or the Operating
Partnership, 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. Such
opinion shall not be deemed to address any federal securities law
matters specifically addressed elsewhere in such opinion letter.
Except for the registration of the Underwritten Securities under the
1933 Act and such filings, consents, approvals, authorizations,
registrations or qualifications as have been made or obtained prior to
the date hereof 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 express no opinion) in connection with
the purchase and distribution of the Underwritten Securities to you,
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 as of the date
hereof of this Agreement by the Company and the Operating Partnership,
and the applicable Terms Agreement by the Company, and the
consummation of the transactions contemplated hereby and thereby.
(xxi) None of the Company, any of its Subsidiaries or the
Operating Partnership is an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
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(2) The favorable opinion, dated as of Closing Time, of Hunton & Williams,
counsel for the Underwriters, with respect to the matters set forth in (i),
(vii) to (xiii), inclusive, (xv) and (xvi) of subsection (b)(1).
(3) In giving their opinions required by subsections (b)(1) and (b)(2),
respectively, of this Section, Hogan & Hartson L.L.P. and Hunton & Williams
shall each additionally state that (i) nothing has come to their attention that
causes them to believe that the Registration Statement (except for financial
statements and supporting schedules included therein or omitted therefrom, and
other financial and statistical data included therein or omitted therefrom, as
to which counsel need make no statement) at the time it became effective or as
of the date of filing with the Commission of the Company's most recent Annual
Report on Form 10-K 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, (ii) the Prospectus, as of its date
or as of the date hereof, contained or contains 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, (iii) other than as set forth in the Prospectus,
there are any legal or governmental proceedings pending to which the Company,
CPHC or the Operating Partnership is a party, or of which any Property is the
subject, which, if determined adversely to the Company or any such subsidiary,
would reasonably be expected to have a material adverse effect on the
consolidated financial position or results of operations of the Company and its
subsidiaries, considered as one enterprise, or that any such proceedings are
threatened by governmental authorities or others, or (iv) there are any
contracts entered into by the Company or the Operating Partnership after July
30, 1997, that are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statements that are
not described or referred to therein or so filed; provided that in making the
foregoing statements (which shall not constitute an opinion by such counsel), no
views are expressed as to the financial statements and supporting schedules and
other financial and statistical information and data included in or omitted from
the Registration Statement or the Prospectus.
In giving their opinions required by subsections (b)(1) and (b)(2),
respectively, of this Section, Hogan & Hartson L.L.P. and Hunton & Williams 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 Hunton & Williams 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.
24
<PAGE>
(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
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 that causes them to believe (A) that any material modifications
should be made to the unaudited
25
<PAGE>
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 changes, increases or
decreases that 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 that 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
26
<PAGE>
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, if any,
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.
(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)(3) hereof.
(3) The favorable opinion of Hunton & Williams, 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)(3) hereof.
(4) 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.
(h) If applicable, at the Closing Date, the Common Shares shall be
approved for listing, subject to official notice of issuance, on the New York
Stock Exchange or such other national exchange on which the Company's Common
Shares are then listed.
(i) 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.
27
<PAGE>
(a) 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;
(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).
(b) 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
28
<PAGE>
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).
(c) 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 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.
(d) 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
29
<PAGE>
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 that 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 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.
(a) 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 termination to the other
parties hereto.
30
<PAGE>
(b) 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.
(c) 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 that it or 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:
31
<PAGE>
(a) 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
(b) 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 that 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 to
Wheat First Securities, Inc., Attention: Syndication Department, Riverfront
Plaza, 901 East Byrd Street, Richmond, Virginia 23219, and notices to the
Company shall be directed to it at 2101 6th Avenue North, Suite 750, Birmingham,
Alabama 35202, 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
32
<PAGE>
and said controlling persons and officers and directors and their heirs and
legal representatives, and for the benefit of 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.
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
Date: March 24, 1998 By: /s/ Douglas B. Nunnelley
----------------------------------------
Douglas B. Nunnelley,
Senior Vice President and
Secretary
COLONIAL REALTY LIMITED PARTNERSHIP,
the Operating Partnership
By: Colonial Properties Holding Company, Inc.
(its general partner)
By: /s/ Douglas B. Nunnelley
----------------------------------------
33
<PAGE>
Douglas B. Nunnelley,
Senior Vice President and
Secretary
CONFIRMED AND ACCEPTED,
as of the date first
above written:
Wheat First Securities, Inc.
By: Carl L. Kinder, III
----------------------------------------
Name: Carl L. Kinder, III
Title: Vice President
34
<PAGE>
Exhibit A
COLONIAL PROPERTIES TRUST
(an Alabama Real Estate Investment Trust)
[Title of Securities]
TERMS AGREEMENT
Dated: __________, 199___
To: COLONIAL PROPERTIES TRUST
2101 6th Avenue North
Suite 750
Birmingham, Alabama
Attention: Chairman of the Board of Trustees
Dear Sirs:
We (the "Representative") understand that Colonial Properties Trust, an
Alabama real estate investment trust (the "Company"), proposes to issue and sell
the number of [Preferred Shares of beneficial interest (the "Preferred Shares")]
common shares of beneficial interest $.01 par value (the "Common Shares") and
warrants exercisable for Common Shares ("Common Share Warrants") (such
[Preferred Shares] [Common Shares] [Common Share Warrants] being [collectively
hereinafter referred to as the "Underwritten Securities")]. Subject to the terms
and conditions set forth or incorporated by reference herein, the underwriters
named below (the "Underwriters") offer to purchase, severally and not jointly,
the respective numbers of [Initial Underwritten Securities (as defined in the
Underwriting Agreement referenced to below)] set forth below opposite their
respective names, and a proportionate share of Option Securities (as defined in
the Underwriting Agreement referred to below) to the extent any are purchased)
at the purchase price set forth below.
1
<PAGE>
Number of Shares
of Initial
Underwriter Underwritten Securities
Total $
__________
The Underwritten Securities shall have the following terms:
Title of Securities:
Number of Shares:
[Current Ratings:]
[Dividend Rate: [$ ] [ %], Payable:]
[Stated Value:]
[Liquidation Preference:]
[Ranking:]
Public offering price per share: $ [, plus accumulated dividends, if any,
from , 19 .]
Purchase price per share: $ [, plus accumulated dividends, if any, from, 19 .]
[Conversion provisions:]
[Redemption provisions:]
[Sinking fund requirements:]
Number of Option Securities, if any, that may be purchased by the Underwriters:
Delayed Delivery Contracts: [authorized] [not authorized]
[Date of Delivery:
Minimum Contract:
2
<PAGE>
Maximum number of Shares:
Fee: ]
Additional co-managers, if any:
Other terms:
Closing date and location:
Common Share Warrants
Number of Common Share Warrants to be issued:
Warrant Agent:
Issuable jointly with Common Shares: [Yes] [No]
[Number of Common Stock Warrants issued
with each share of
Beneficial Interest:]
[Detachable data:]
Date from which Common Share Warrants are exercisable:
Date on which Common Share Warrants expire:
Exercise price(s) of Common Share Warrants:
Initial public offering price: $
Purchase price: $
Title of Warrant Securities:
Principal amount purchasable upon exercise of one Common Share Warrant:
Interest rate: Payable:
Date of maturity:
Redemption provisions:
Sinking fund requirements:
[Delayed Delivery Contracts: [authorized][not authorized]
3
<PAGE>
[Date of delivery:
Minimum contract:
Maximum aggregate principal amount:
Fee: %]
Other terms:
[Closing date and location:]]
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.
Please accept this offer no later than o'clock P.M. (New York City time)
on _____________ by signing a copy of this Terms Agreement in the space set
forth below and returning the signed copy to us.
Very truly yours,
WHEAT FIRST SECURITIES, INC.
By_______________________________________
Acting on behalf of itself and
the other named Underwriters.
Accepted:
COLONIAL PROPERTIES TRUST
By_______________________________________
Name:
Title:
4
<PAGE>
Exhibit B
COLONIAL PROPERTIES TRUST
(an Alabama Real Estate Investment Trust)
[Title of Securities]
DELAYED DELIVERY CONTRACT
____________, 199___
COLONIAL PROPERTIES TRUST
2101 6th Avenue North
Suite 750
Birmingham, Alabama
Attention: Chairman of the Board of Directors
Dear Sirs:
The undersigned hereby agrees to purchase from Colonial Properties Trust
(the "Company"), and the Company agrees to sell to the undersigned on
__________, 19__ (the "Delivery Date"), of the Company's [insert title of
security] (the "Securities"), offered by the Company's Prospectus dated
__________, 19__, as supplemented by its Prospectus Supplement dated
___________, 19__, receipt of which is hereby acknowledged at a purchase price
of [$__________] [and, $__________ per Warrant, respectively] to the Delivery
Date, and on the further terms and conditions set forth in this contract.
Payment for the Securities which the undersigned has agreed to purchase on
the Delivery Date shall be made to the Company or its order by certified or
official bank check in Federal or other same day funds at the office of
_________, on the Delivery Date, upon delivery to the undersigned of the
Securities to be purchased by the undersigned in definitive form and in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than five
full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Securities on the Delivery Date shall be subject only to the conditions that (1)
the purchase of Securities to be made by the undersigned shall not on the
Delivery Date
B-1
<PAGE>
be prohibited under the laws of the jurisdiction to which the undersigned is
subject and (2) the Company, on or before __________, 19__, shall have sold to
the Underwriters of the Securities (the "Underwriters") such principal amount of
the Securities as is to be sold to them pursuant to the Terms Agreement dated
__________, 19__ between the Company and the Underwriters. The obligation of the
undersigned to take delivery of and make payment for Securities shall not be
affected by the failure of any purchaser to take delivery of and make payments
for Securities pursuant to other contracts similar to this contract. The
undersigned represents and warrants to you that its investment in the Securities
is not, as of the date hereof, prohibited under the laws of any jurisdiction to
which the undersigned is subject and which govern such investment.
Promptly after completion of the sale to the Underwriters, the Company will
mail or deliver to the undersigned at its address set forth below notice to such
effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to the
Company that all necessary corporate action for the due execution and delivery
of this contract and the payment for and purchase of the Securities has been
taken by it and no further authorization or approval of any governmental or
other regulatory authority is required for such execution, delivery, payment or
purchase, and that, upon acceptance hereof by the Company and mailing or
delivery of a copy as provided below, this contract will constitute a valid and
binding agreement of the undersigned in accordance with its terms.
This contract will inure to the benefit of and binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed Delivery
Contracts for a number of Securities in excess of ________ and that the
acceptance of any Delayed Delivery Contract is in the Company's sole discretion
and, without limiting the foregoing, need not be on a first-come, first-served
basis. If this contract is acceptable to the Company, it is requested that the
Company sign the form of acceptance on a copy hereof and mail or deliver a
signed copy hereof to the undersigned at its address set forth below. This will
become a binding contract between the Company and the undersigned when such copy
is so mailed or delivered.
B-2
<PAGE>
This Agreement shall be governed by the laws of the State of New York.
Yours very truly,
(Name of Purchaser)
By_____________________________________
(Title)
(Address)
Accepted as of the date first above written.
COLONIAL PROPERTIES TRUST
By_____________________________________
(Title)
PURCHASER-PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser with
whom details of delivery on the Delivery Date may be discussed are as follows:
(Please print.)
Telephone No.
Name (including Area Code)
_________________________ ________________________________
B-3
<PAGE>
EXHIBIT 1.2
COLONIAL PROPERTIES TRUST
(an Alabama Real Estate Investment Trust)
Common Shares
TERMS AGREEMENT
---------------
Dated: March 24, 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
808,081 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. We intend to deposit the shares directly with
(the "Trust"), a registered unit investment trust under the Investment Company
Act of 1940, as amended, to which Smith Barney Inc. acts as sponsor and
depositor. We are an affiliate of the Trust.
<PAGE>
Number of Shares
of Initial
Underwriter Underwritten Securities
- ----------- -----------------------
Wheat First Securities, Inc. 806,452
The Underwritten Securities shall have the following terms:
<TABLE>
<CAPTION>
Title of Securities: Common Shares
<S> <C>
Number of Shares: 806,452
Public offering price per share: $31.0000
Purchase price per share: $29.4500
Number of Option Securities,
if any, that may be purchased
by the Underwriter: None
Additional co-managers, if any: None
Closing date and location: March 27, 1998, at 9:00 a.m.
Richmond, Virginia time, at
Hunton & Williams
Riverfront Plaza, East Tower
351 East Byrd Street
Richmond, Virginia 23219
</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 March 24, 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,
WHEAT FIRST SECURITIES, INC.
By /s/ Carl L. Kinder, III
---------------------------------------
Name: Carl L. Kinder, III
Title: Vice President
Accepted:
COLONIAL PROPERTIES TRUST
By /s/ Douglas B. Nunnelley
--------------------------------
Name: Douglas B. Nunnelley
Title: Senior Vice President and
Secretary
3
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF HOGAN & HARTSON L.L.P.]
March 24, 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. 333-18259) and its registration statement on
Form S-3 (SEC File No. 333-38613) (together, the "Registration Statements"),
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 Statements, 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 806,452 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 March 24, 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. (S)229.601(b)(5), in
connection with the Registration Statements.
For purposes of this opinion letter, we have examined copies of the
following documents:
1. Executed copies of the Registration Statements.
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
March 24, 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 meetings held on January 23, 1997, and October 23,
1997, authorizing the preparation, execution and filing of the
Registration Statements, 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 adopted at a meeting held on October
23, 1997, and of the Pricing Committee of the Board adopted by written
consent of the sole member on March 24, 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 March 24, 1998, by
and among the Company, Colonial Realty Limited Partnership and Wheat
First Securities, Inc., and the Terms Agreement dated March 24, 1998,
by and among the Company and Wheat First Securities, Inc. (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.
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 &
<PAGE>
Board of Trustees
Colonial Properties Trust
March 24, 1998
Page 3
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 Board and the Pricing Committee described in paragraph 6
above, the Shares will be validly issued, fully paid and non-assessable 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 Statements. 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,
/s/ Hogan & Hartson L.L.P.
HOGAN & HARTSON L.L.P.
<PAGE>
EXHIBIT 5.2
[LETTERHEAD OF SIROTE & PERMUTT, P.C.]
March 24 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. 333-18259) and its registration
statement on Form S-3 (SEC File No. 333-38613)(together, the "Registration
Statements") 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 Statements, 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 806,452 common shares of
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 March 24, 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. (S) 229.601(b)(5),
in connection with the Registration Statements.
For purposes of this opinion letter, we have examined copies of the
following documents:
1. Executed copies of the Registration Statements.
2. Copies of the Prospectus and the Prospectus Supplement.
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.
<PAGE>
Board of Trustees
Colonial Properties Trust
March 24, 1998
Page 2
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 meeting held on January 23, 1997, approving and ratifying the
preparation, execution and filing of the Registration Statements, 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 March 24,
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 set forth in the Terms Agreement.
7. Executed copies of the Underwriting Agreement dated March 24,
1998 among the Company, Colonial Realty Limited Partnership (the "Operating
Partnership") and Wheat First Securities, Inc. (the "Underwriting Agreement")
and the Terms Agreement dated March 24, 1998 between the Company and Wheat First
Securities, Inc. (the "Terms 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 of such latter
documents. This opinion letter is given, and all statements herein are made, in
the context of the foregoing.
<PAGE>
Board of Trustees
Colonial Properties Trust
March 24, 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 this 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/ Sirotte & Permutt, P.C.
SIROTTE & PERMUTT, P.C.
