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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
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February 10, 1998
(Date of Report (Date of Earliest Event Reported))
CHATEAU COMMUNITIES, INC.
(Exact Name of Registrant as Specified in Its Charter)
Maryland 001-12496 38-3132038
(State or Other Jurisdiction (Comission (IRS Employer
of Incorporation) File Number) Identification Number)
643 So. Quebec Street, Englewood, Clorado 80111
(Address of Principal Executive Offices) (Zip Code)
(303) 741-3707
(Registrant's Telephone Number, Including Area Code)
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Item 5. Other Events
The purpose of the filing of this current report on Form 8-K by Chateau
Communities, Inc. (the "Company") is to include certain additional exhibits to
the Company's Registration Statement on Form S-3 (No. 333-4544) (the
"Registration Statement") filed with the Securities and Exchange Commission
under the Securities Act of 1933, as amended. The Exhibit numbers and Exhibits
set forth below correspond to the Exhibit numbers and Exhibits included in the
Registration Statement.
Item 7. Exhibits
1.1 Form of Underwriting Agreement
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.
Dated: February 10, 1998
By: /s/ Tamara Fischer
--------------------------
Tamara Fischer
Chief Financial Officer
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Exhibit 1.1
CHATEAU COMMUNITIES, INC.
2,000,000 Shares of Common Stock
($0.01 Par Value)
UNDERWRITING AGREEMENT
February 10, 1998
PAINEWEBBER INCORPORATED
A.G. EDWARDS & SONS, INC.
c/o PaineWebber Incorporated
1285 Avenue of the Americas
New York, New York 10019
Dear Ladies and Gentlemen:
Each of Chateau Communities, Inc., a Maryland corporation (the "Company"),
and CP Limited Partnership, a Maryland limited partnership, confirms its
agreement with you, as underwriters (collectively, the "Underwriters"), as
follows:
Capitalized terms used but not otherwise defined herein shall have the
meanings given to those terms in the Prospectus (as herein defined).
1. Description of Securities. The Company proposes to sell to you, under
the terms and subject to the conditions of this Agreement, an aggregate of
2,000,000 shares (the "Firm Shares") of its Common Stock, $0.01 par value (the
"Common Stock"). The Company has also agreed to grant to you and the other
Underwriters an option (the "Option") to purchase up to an additional 300,000
shares of Common Stock (the "Option Shares") on the terms and for the purposes
set forth in Section 3. The Firm Shares and the Option Shares are hereinafter
collectively referred to as the "Shares."
2. Representations and Warranties of the Company. The Company represents
and warrants to you as follows:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-04544) for the registration of shares of Common Stock, including the Shares,
and other securities of the Company, 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 Rules and Regulations"). Such registration statement
has been declared effective by the Commission. Such registration statement and
the prospectus constituting a part thereof, as from time to time amended or
supplemented by the filing of
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documents pursuant to the Securities Exchange Act of 1934, as amended (the "1934
Act"), or the 1933 Act or otherwise, is referred to herein as the "Registration
Statement." A prospectus supplement (the "Prospectus Supplement") setting forth
the terms of the offer and sale of the Shares contemplated by this Agreement,
and additional information concerning the Company and its business has been or
will be prepared and will be filed by the Company pursuant to Rule 424(b) of the
1933 Act Rules and Regulations, on or before the second business day after it is
first used in connection with the offer and sale of Shares under this Agreement
(or such earlier time as may be required by the 1933 Act Rules and Regulations).
The final form of prospectus included in the Registration Statement, as
supplemented by the Prospectus Supplement, is referred to herein as the
"Prospectus," except that if any revised prospectus, whether or not such revised
prospectus is required to be filed by the Company pursuant to Rule 424(b) of the
1933 Act Rules and Regulations, shall be provided to you by the Company for use
in connection with the offer and sale of any of the Shares under this Agreement,
the term "Prospectus" shall refer to such revised prospectus from and after the
time such documents are first provided to you for such use.
(b) Each part of the Registration Statement, when such part became
or becomes effective, and the Prospectus and any amendment or supplement to such
Registration Statement or such Prospectus, on the date of filing thereof with
the Commission and at the Closing Date (as hereinafter defined) and, if later,
the Option Closing Date, conformed or will conform in all material respects with
the requirements of the 1933 Act and the 1933 Act Rules and Regulations; each
part of the Registration Statement, when such part became or becomes effective
did not or will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; the Prospectus and any amendment or
supplement thereto, on the date of filing thereof with the Commission and at the
Closing Date and, if later, the Option Closing Date, did not or will not include
an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; except that the foregoing shall not
apply to statements in, or omissions from, any such document in reliance upon,
and in conformity with, information concerning you that was furnished to the
Company by you specifically for use in the preparation thereof.
(c) The documents incorporated by reference in the Registration
Statement, the Prospectus and any amendment or supplement to such Registration
Statement or such Prospectus, when they became or become effective under the
1933 Act or were or are filed with the Commission under the 1934 Act, as the
case may be, conformed or will conform in all material respects with the
requirements of the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act
and the rules and regulations of the Commission thereunder (the "1934 Act Rules
and Regulations"), as applicable.
(d) The financial statements and schedules set forth or incorporated
by reference in the Registration Statement or Prospectus fairly present the
consolidated financial condition of the Company as of the dates indicated and
the consolidated results of operations
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and changes in financial position for the periods therein specified in
conformity with generally accepted accounting principles consistently applied
through the periods involved (except as otherwise stated therein). The summary
financial, pro forma financial and statistical data included or incorporated by
reference in the Registration Statement and the Prospectus present fairly the
information shown therein and, to the extent based upon or derived from the
financial statements, have been compiled on a basis consistent with the
financial statements presented therein. Coopers and Lybrand L.L.P. ("C&L") and
Deloitte & Touche LLP ("D&T") (the "Accountants"), who have reported on such
financial statements and schedules, are independent accountants with respect to
the Company as required by the 1933 Act and the 1933 Act Rules and Regulations.
No other financial statements are required to be set forth or incorporated by
reference in the Registration Statement or the Prospectus under the 1933 Act,
the 1933 Act Rules and Regulations, 1934 Act or the 1934 Act Rules and
Regulations. The pro forma financial statements and other pro forma financial
information included or incorporated by reference in the Registration Statement
or the Prospectus (i) have been prepared in accordance with the Commission's
rules and guidelines with respect to pro forma financial statements and (ii)
have been properly computed on the bases described therein. The assumptions used
in the preparation of the pro forma financial statements and other pro forma
financial information included in the Registration Statement or the Prospectus
are reasonable and the adjustments used therein are appropriate to give effect
to the transactions or circumstances referred to therein.
(e) The only subsidiaries (as defined in the 1933 Act Rules and
Regulations) of the Company are the subsidiaries listed on Schedule I hereto
(the "Subsidiaries"), which includes CP Limited Partnership, a Maryland limited
partnership (the "Operating Partnership"). The Company and each of its
Subsidiaries has been duly incorporated or formed, as the case may be, and is an
existing corporation or general or limited partnership, as the case may be, in
good standing under the laws of its jurisdiction of incorporation or formation,
as the case may be. The Company and each of its Subsidiaries has full power and
authority (corporate and other) to conduct its business as described in the
Registration Statement and Prospectus, and is duly qualified to do business in
each jurisdiction in which it owns or leases real property or in which the
conduct of its business requires such qualification, except where the failure to
be so qualified, considering all such cases in the aggregate, does not involve a
material risk to the business, properties, financial position or results of
operations of the Company; and, other than the Subsidiaries, the Company owns no
material amounts of stock or beneficial interest in any corporation,
partnership, joint venture or other business entity and does not own 10% or more
of the outstanding voting stock of any entity separately taxable as a
corporation under the Internal Revenue Code of 1986, as amended (the "Code").
(f) The outstanding shares of Common Stock and the Shares have been
duly authorized and are, or when the Shares are issued as contemplated hereby
will be, validly issued, fully paid and non-assessable by the Company and
conform, or when so issued will conform, to the description thereof in the
Prospectus. All of the partnership interests of the Operating Partnership have
been duly and validly authorized and issued and are fully paid and
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approximately 90% of such partnership interests are owned of record and
beneficially by the Company free and clear of all liens, encumbrances, equities
or claims.
(g) Except as contemplated in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration Statement
and the Prospectus, the Company and its Subsidiaries have not incurred any
liabilities or obligations, direct or contingent, or entered into any
transactions, not in the ordinary course of business, that are material to the
Company and its Subsidiaries on a consolidated basis, and there has not been any
material change in the capital stock, short-term debt or long-term debt of the
Company and its Subsidiaries, or any material adverse change, or any development
involving a prospective material adverse change, in the condition (financial or
other), business, prospects, net worth or results of operations of the Company
on a consolidated basis.
(h) Except as set forth in the Prospectus, there is not pending or,
to the knowledge of the Company, threatened any action, suit or proceeding to
which the Company or any of its Subsidiaries is a party, before or by any court
or governmental agency or body, that might result in any material adverse change
in the condition (financial or other), business, prospects, net worth or results
of operations of the Company and its Subsidiaries, or might materially and
adversely affect the properties or assets thereof.
(i) There are no contracts or documents of the Company that are
required to be filed as exhibits to the Registration Statement or to any of the
documents incorporated by reference therein by the 1933 Act Rules and
Regulations or the 1934 Act or by the 1933 Act or the 1934 Act Rules and
Regulations that have not been so filed.
(j) Each of the Company and the Operating Partnership has full
corporate power and authority to enter into and perform this Agreement. The
execution and delivery of, and the performance by each of the Company and the
Operating Partnership of its obligations under, this Agreement have been duly
and validly authorized by the Company and the Operating Partnership and this
Agreement has been duly executed and delivered by the Company and the Operating
Partnership and constitutes the valid and legally binding agreement of the
Company and the Operating Partnership, enforceable against them in accordance
with its terms, except as rights to indemnity and contribution hereunder may be
limited by federal and state securities laws or principles of public policy and
subject to the qualification that the enforceability of the obligations of the
Company and the Operating Partnership hereunder may be limited by bankruptcy,
fraudulent conveyance, insolvency, reorganization, moratorium, and other laws
relating to or affecting creditors' rights generally and by general equitable
principles. The execution of this Underwriting Agreement and the consummation of
the transactions herein contemplated will not result in a breach or violation of
any of the terms and provisions of, or constitute a default under, any statute,
any agreement or instrument to which the Company or the Operating Partnership is
a party or by which they are bound or to which any of the property of the
Company or the Operating Partnership is subject, the charter, or by-laws or
partnership agreement, as the case may be, of the Company or the Operating
Partnership, or any order, rule or regulation of any court or governmental
agency or
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body having jurisdiction over the Company or the Operating Partnership or any of
their properties; no consent, approval, authorization or order of, or filing
with, any court or governmental agency or body is required for the consummation
of the transactions contemplated by this Underwriting Agreement in connection
with the issuance or sale of the Shares by the Company, except such as may be
required under the 1933 Act or state securities laws; and the Company has full
power and authority to authorize, issue and sell the Shares as contemplated by
this Underwriting Agreement, free of any preemptive or similar rights.
(k) Each of the Company and the Operating Partnership has complied
in all respects with all laws, regulations and orders applicable to it and its
business; neither the Company nor the Operating Partnership is in default under
any indenture, mortgage, deed of trust, voting trust agreement, loan agreement,
bond debenture, note agreement or evidence of indebtedness, lease, contract or
other agreement or instrument to which the Company or the Operating Partnership
is a party or by which the Company or the Operating Partnership or any of their
properties is bound, violation of which would individually or in the aggregate
have a material adverse effect on the Company, and no other party under any such
agreement or instrument to which the Company is a party, to the knowledge of the
Company, in default in any material respect thereunder; and neither the Company
nor the Operating Partnership is in violation of its charter or by-laws.
(l) The Company or its Subsidiaries, as the case may be, has good
and marketable title to all items of real property owned by them, in each case
free and clear of all liens, encumbrances, claims, security interests and
defects, other than those referred to in the Prospectus, mortgages on real
property, and those 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 or
the Operating Partnership and its Subsidiaries considered as one enterprise; (b)
all liens, charges, encumbrances, claims, or restrictions on or affecting the
properties and assets owned by the Company or any of its Subsidiaries which are
required to be disclosed in the Prospectus are disclosed therein; (c) except as
disclosed in the Prospectus, none of the Company, the Operating Partnership or
any of their respective Subsidiaries, or, to the best of the knowledge of the
Company and the Operating Partnership, any lessee under a lease relating to any
of the Properties, is in default under any of the leases relating to the
Properties and neither the Company nor the Operating Partnership knows of any
event which, but for the passage of time or the giving of notice, or both, would
constitute a default under any of such leases, except such defaults that would
not have a material adverse effect on the condition, financial or otherwise, or
on the earnings, business affairs or business prospectus of the Company and its
Subsidiaries considered as one enterprise or the Operating Partnership and its
Subsidiaries considered as one enterprise; (d) no tenant under any of the leases
pursuant to which the Company, the Operating Partnership or any of their
respective Subsidiaries leases any of its real property or improvements has an
option to purchase the premises demised under such lease; (e) each of the
Properties is in compliance with all applicable codes and zoning laws and
regulations, except for such failures to comply which would not individually or
in the aggregate have a material adverse effect on the condition, financial or
otherwise, or on the
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earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise or the Operating Partnership and its
subsidiaries considered as one enterprise; and (f) neither the Company nor the
Operating Partnership has knowledge of any pending or threatened condemnation,
zoning change, or other proceeding or action, except such proceedings or actions
that would not have a material adverse effect on the condition, financial or
otherwise, or on the earnings, business affairs or business prospects of the
Company and its Subsidiaries considered as one enterprise or the Operating
Partnership and its Subsidiaries considered as one enterprise.
(m) Title insurance in favor of the mortgagee, the Company, its
Subsidiaries and Related Entities is maintained with respect to each of the
Properties owned by the Company, its Subsidiaries and Related Entities, as shown
in the Prospectus, in an amount at least equal to the greater of (i) the cost of
acquisition of such property and (ii) the cost of construction by the Company,
its Subsidiaries or Related Entities of the improvements located on such
property (measured at the time of such construction), except, in each case,
where the failure to maintain such title insurance 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
Related Entities taken as a whole.
(n) The mortgages and deeds of trust encumbering the Properties and
assets described in the Prospectus are not convertible, nor do the Company or
its Subsidiaries hold a participating interest therein.
(o) Except as set forth in the Prospectus, the Company has no
knowledge of (i) the unlawful presence of any hazardous substances, hazardous
materials, toxic substances or waste materials (collectively, "Hazardous
Materials") on any of the properties owned by it or its Subsidiaries or Related
Entities, or (ii) any unlawful spills, releases, discharges or disposal of
Hazardous Materials that have occurred or are presently occurring off such
properties as a result of any construction on or operation and use of such
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. In connection with the construction on or
operation and use of the properties owned by the Company or its Subsidiaries or
Related Entities, the Company represents that, as of the date of this
Underwriting Agreement, it has no knowledge of any failure to comply with all
applicable local, state and federal environmental laws, regulations, ordinances
and administrative and judicial orders relating to the generation, recycling,
sale, storage, handling, transport and disposal of any Hazardous Materials,
which failure would have a material adverse effect on the condition, financial
or otherwise, or the earnings, business affairs or business prospects of the
Company.
(p) Property and casualty insurance in favor of the Company and each
of its Subsidiaries is maintained with respect to each of the properties owned
by each of them in an amount and on such items as is reasonable and customary
for businesses of this type.
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(q) No holder of outstanding shares of capital stock of the Company
has any rights to the registration of shares of capital stock of the Company
which would or could require such securities to be included in the Registration
Statement.
(r) Each of the Company and its Subsidiaries has filed all federal,
state and foreign income tax returns which have been required to be filed and
has paid all taxes indicated by said returns and all assessments received by it
to the extent that such taxes have become due. There are no tax returns of the
Company or any of its Subsidiaries that are currently being audited by state,
local or federal taxing authorities or agencies (and with respect to which the
Company or any Subsidiary has received notice), where the findings of such
audit, if adversely determined, would result in a material adverse effect on the
condition (financial or otherwise) or on the earnings, business, properties,
business prospects or operations of the Company and its Subsidiaries, taken as a
whole.
(s) Each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and delivery by the
Company of this Agreement and the consummation of the transactions herein
contemplated (except such additional steps as may be required by the National
Association of Securities Dealers, Inc. (the "NASD") or by the New York Stock
Exchange (the "NYSE"), or as may be necessary under state securities laws) has
been obtained or made and is in full force and effect.
(t) Each of the Company and its Subsidiaries holds all material
licenses, certificates and permits from governmental authorities which are
necessary to the conduct of its respective business; and the Company has not
infringed any patents, patent rights, trade names, trademarks or copyrights,
which infringement is material to the business of the Company as a whole.
(u) For all applicable tax years as to which the Company's tax
returns are subject to audit and the Company is subject to assessment for taxes
reportable therein, the Company has continuously been organized and operating in
conformity with the requirements for qualification as a real estate investment
trust under the Code. The Company's method of operation will permit it to
continue to meet the requirements for taxation as a real estate investment trust
under the Code. The Company has no intention of changing its operations or
engaging in activities which would adversely affect its ability to qualify, or
make economically undesirable its continued qualification as, a real estate
investment trust.
(v) Neither the Company nor any of its subsidiaries is an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
(w) The Shares have been approved for listing upon official notice
of issuance on the NYSE.
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(x) Each of the partnership and joint venture agreements to which
the Company is a party, and which relates to real property described in the
Prospectus, has been duly authorized, executed and delivered by such applicable
party and constitutes the valid agreement thereof, enforceable in accordance
with its terms, except to the extent that enforcement thereof may be limited by
(1) bankruptcy, insolvency, reorganization, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights generally and (2) general
principles of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity) and the executing, delivery and performance of
any of such agreements did not and will not, at the time of execution and
delivery, and does not and will not constitute a breach of, or a default under,
the charter, partnership agreement or by-laws of the Company or any of its
Subsidiaries or any material contract, lease or other instrument to which the
Company or any of its Subsidiaries is a party or to which any of their property
may be bound or any law, administrative regulation or administrative or court
decree.
3. Purchase, Sale and Delivery of Shares.
(a) On the basis of the representations, warranties and agreements
of the Company herein contained and subject to all the terms and conditions of
this Agreement, the Company agrees to sell to each Underwriter named below, and
each Underwriter, severally and not jointly, agrees to purchase from the Company
at a purchase price of $______ per Share the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule II.
(b) Subject to all the terms and conditions of this Agreement, the
Company grants the Option to the Underwriters to purchase, severally and not
jointly, up to 300,000 Option Shares from the Company at the same price per
share as the Underwriters shall pay for the Firm Shares. The Option may be
exercised only to cover over-allotments in the sale of the Firm Shares by the
Underwriters and may be exercised in whole or in part at any time (but not more
than once) on or before the 30th day after the date of this Agreement, upon
written or telegraphic notice (the "Option Shares Notice") by PaineWebber
Incorporated to the Company no later than 12:00 noon, New York City time, at
least two and no more than five business days before the date specified for
closing in the Option Shares Notice (the "Option Closing Date") setting forth
the aggregate number of Option Shares to be purchased and the time and date for
such purchase. On the Option Closing Date, the Company will issue and sell to
the Underwriters the number of Option Shares set forth in the Option Shares
Notice, and each Underwriter will purchase such percentage of the Option Shares
as is equal to the percentage of Firm Shares that such Underwriter is
purchasing, as adjusted by PaineWebber Incorporated in such manner as it deems
advisable to avoid fractional shares.
(c) Delivery of the Firm Shares shall be made to PaineWebber
Incorporated for the accounts of the Underwriters [at the office of PaineWebber
Incorporated, 1285 Avenue of the Americas, New York, New York 10019], [through
the book entry facilities with the Depository Trust Company], against payment of
the purchase price by [Federal Reserve Funds check payable in immediately
available funds to the order of the Company] [by wire transfer of
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Federal Funds or similar same day funds to an account designated in writing by
the Company to PaineWebber Incorporated at least one business day prior to the
Closing Date (as hereinafter defined)]. Such payment shall be made at 10:00
a.m., New York City time, on the third business day (or fourth business day if
this Agreement is executed after 4:30 p.m.) after the date on which the first
bona fide offering of the Shares to the public is made by the Underwriters or at
such time on such other date, not later than ten business days after such date,
as may be agreed upon by the Company and the Underwriters (such date is
hereinafter referred to as the "Closing Date").
To the extent the Option is exercised, delivery of the Option Shares
against payment by the Underwriters (in the manner specified above) will take
place at the offices specified above for the Closing Date at the time and date
(which may be the Closing Date) specified in the Option Shares Notice.
[Certificates evidencing the Shares shall be in definitive form and shall
be registered in such names and in such denominations as the Underwriters shall
request at least two business days prior to the Closing Date or the Option
Closing Date, as the case may be, by written notice to the Company. For the
purpose of expediting the checking and packaging of certificates for the Shares,
the Company agrees to make such certificates available for inspection at least
24 hours prior to the Closing Date or the Option Closing Date, as the case may
be.]
The cost of original issue tax stamps, if any, in connection with the
issuance and delivery of the Firm Shares and Option Shares by the Company to the
respective Underwriters shall be borne by the Company. The Company will pay and
save each Underwriter and any subsequent holder of the Shares harmless from any
and all liabilities with respect to or resulting from any failure or delay in
paying Federal and state stamp and other transfer taxes, if any, which may be
payable or determined to be payable in connection with the original issuance or
sale to such Underwriter of the Firm Shares and Option Shares.
4. Covenants. The Company covenants and agrees to:
(a) Cause the Prospectus Supplement to be filed pursuant to Rule
424(b) of the 1933 Act Rules and Regulations on or before the second business
day after the date hereof (or such earlier time as may be required by the 1933
Act Rules and Regulations) (but only if you or your counsel have not reasonably
objected thereto by notice to the Company after having been furnished a copy a
reasonable time prior to filing) and will notify you promptly of such filing.
During the period in which a prospectus relating to the Shares is required to be
delivered under the 1933 Act, the Company will (i) notify you promptly of the
time when any subsequent amendment to the Registration Statement has become
effective or any supplement to the Prospectus has been filed and of any request
by the Commission for any amendment or supplement to the Registration Statement
or Prospectus or for additional information, (ii) prepare and file with the
Commission, promptly upon your request, any amendments or supplements to the
Registration Statement or Prospectus that, in your opinion, may be
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necessary or advisable in connection with your distribution of the Shares, and
(iii) file no amendment or supplement to the Registration Statement or
Prospectus (other than any document required to be filed under the 1934 Act that
upon filing is deemed to be incorporated by reference therein) to which you or
your counsel shall reasonably object by notice to the Company after having been
furnished a copy a reasonable time prior to the filing.
(b) Advise you, promptly after either one of them shall receive
notice or obtain knowledge thereof, of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement, of the
suspension of the qualification or registration of the Shares for offering or
sale in any jurisdiction, or of the initiation or threatening of any proceeding
for any such purpose; and it will promptly use its best efforts to prevent the
issuance of any stop order or to obtain its withdrawal if such a stop order
should be issued.
(c) Comply with all requirements imposed upon them by the 1933 Act,
the 1933 Act Rules and Regulations, the 1934 Act, and the 1934 Act Rules and
Regulations, as from time to time in force, so far as necessary to permit the
continuance of sales of, or dealings in, the Shares as contemplated by the
provisions hereof and the Prospectus. If during such period any event occurs as
a result of which, in the opinion of your counsel, the Registration Statement
contains an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or the Prospectus as then amended or supplemented would include
an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances then
existing, not misleading, or if during such period it is necessary to amend or
supplement the Registration Statement or Prospectus to comply with the 1933 Act,
the Company will promptly notify you and will amend or supplement the
Registration Statement or Prospectus (at the expense of the Company) so as to
correct such statement or omission or effect such compliance.
(d) Furnish to you copies of the Registration Statement, the
Prospectus (including all documents incorporated by reference therein) and all
amendments and supplements to the Registration Statement and Prospectus that are
filed with the Commission during the period in which a prospectus relating to
the Shares is required to be delivered under the 1933 Act (including all
documents filed with the Commission during such period that are deemed to be
incorporated by reference therein), in each case as soon as available and in
such quantities as you may from time to time reasonably request.
(e) Furnish you with copies of filings of the Company under the 1933
Act and 1934 Act and with all other financial statements and reports it
distributes generally to the holders of any class of its capital stock during
the period of five years commencing on the date upon which the Prospectus
Supplement is filed pursuant to Rule 424(b) of the 1933 Act Rules and
Regulations.
(f) Make generally available to its security holders as soon as
practicable and in the manner contemplated by Rule 158 of the 1933 Act Rules and
Regulations, but in any
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event not later than 15 months after the end of the Company's current fiscal
quarter, an earning statement (which need not be audited) covering a 12-month
period beginning after the date upon which the Prospectus is filed pursuant to
Rule 424(b) of the 1933 Act Rules and Regulations that shall satisfy the
provisions of Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules
and Regulations and will advise you in writing when such statement has been made
available.
(g) Pay, or reimburse if paid by you, whether or not the
transactions contemplated by this Underwriting Agreement are consummated or this
Underwriting Agreement is terminated, all costs and expenses incident to the
performance of the obligations of the Company under this Underwriting Agreement,
including but not limited to costs and expenses of or relating to (i) the
preparation, printing and filing of the Registration Statement and exhibits
thereto, the Prospectus and any amendment or supplement to the Registration
Statement or the Prospectus, (ii) the costs incurred by the Company in
furnishing (including costs of shipping, mailing and courier) such copies of the
Registration Statement, the Prospectus and all amendments and supplements
thereto, as may be requested for use in connection with the offering and sale of
the Shares by you or by dealers to whom Shares may be sold, (iii) any
registration or qualification of the Shares for offer and sale under the
securities or blue sky laws of such jurisdictions designated by you, including
the reasonable fees, disbursements and other charges of your counsel in
connection therewith, and the preparation of a blue sky memoranda, (iv) counsel
to the Company, (v) the transfer agent for the Shares (including the cost, if
any, of preparing stock certificates for the Shares) and (vi) C&L, D&T or any
other accountants engaged by the Company in connection with the offering of the
Shares.
(h) In connection with the offering contemplated by this
Underwriting Agreement, the Company will, and will cause all affiliated
purchasers within the meaning of Rule 100 of Regulation M under the 1934 Act to,
comply with Regulation M under the 1934 Act.
(i) Not take, at any time, directly or indirectly, other than in
connection with this Underwriting Agreement, any action designed to stabilize,
or which might reasonably be expected to cause or result in, or which has
constituted or which might reasonably be expected to constitute the
stabilization of, the price of the Shares.
(j) Apply the net proceeds to the Company from the sale of the
Shares by the Company as set forth under the caption "Use of Proceeds" in the
Prospectus.
(k) 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 Shares are to occur, unless otherwise specified in
the Prospectus.
(l) The Company and its executive officers will not, directly or
indirectly, offer, sell or otherwise dispose of any shares of capital stock of
the Company or securities
11
<PAGE> 12
convertible into or exchangeable for, or any rights to purchase or acquire, any
such shares of capital stock, except as provided in the Prospectus Supplement,
prior to the expiration of 90 days from the date of this Agreement without the
prior written consent of PaineWebber Incorporated.
5. Conditions of the Underwriter's Obligations at the Closing. Your
obligation to purchase and pay for the Shares at the Closing as provided herein
shall be subject to the accuracy of the representations and warranties of the
Company herein and to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) You shall have received the opinion of Rogers & Wells, counsel
for the Company, dated the Closing Date, to the effect that:
(i) The Company and each "significant subsidiary" (as such
term is defined in Rule 1-02 of Regulation S-X promulgated under the 1933
Act) of the Company has been duly incorporated or formed, as the case may
be, and is validly existing as a corporation or general or limited
partnership, as the case may be, in good standing under the laws of its
jurisdiction of incorporation or formation, as the case may be, has
corporate or partnership power and authority, as the case may be, to
conduct its business as described in the Registration Statement and
Prospectus, and is duly qualified to do business in and in good standing
in the states of Colorado, Florida, Georgia, Maryland, Michigan, Minnesota
and Indiana.
(ii) The outstanding shares of capital stock of the Company
and the Shares have been duly authorized and are, or when issued as
contemplated hereby will be, fully paid and nonassessable by the Company
and conform, or when so issued will conform, in all material respects, to
the description thereof in the Prospectus, and the stockholders of the
Company have no preemptive rights with respect to the Shares; and all of
the partnership interests of the Operating Partnership owned by the
Company are, to such counsel's knowledge, owned by the Company free and
clear of all liens, charges and encumbrances;
(iii) The Registration Statement has become effective under
the 1933 Act, the Prospectus will be filed as required by Section 2(a)
hereof and, to the best knowledge of such counsel, after due inquiry, no
stop order suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose has been instituted or
threatened by the Commission;
(iv) Each part of the Registration Statement, when such part
became effective, and the Prospectus and any amendment or supplement
thereto, on the date of filing thereof with the Commission and at the
Closing Date, complied as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Rules and Regulations; and
the documents incorporated by reference in the Registration Statement or
Prospectus or any amendment or supplement thereto, when they became
effective
12
<PAGE> 13
under the 1933 Act or were filed with the Commission under the 1934 Act,
as the case may be, complied as to form in all material respects with the
requirements of the 1933 Act or the 1934 Act, as applicable, and the 1933
Act or 1934 Act Rules and Regulations, as applicable; it being understood
that such counsel need express no opinion as to the financial statements
or other financial data included in any other documents mentioned in this
clause;
(v) The descriptions in the Registration Statement and
Prospectus of statutes, legal and governmental proceedings, contracts and
other documents are accurate in all material respects and fairly present
the information required to be shown; and such counsel does not know of
any statutes or legal or governmental proceedings required to be described
in the Prospectus that are not described as required, or of any contracts
or documents of a character required to be described in the Registration
Statement or Prospectus (or required to be filed under the 1934 Act if
upon such filing they would be incorporated by reference therein) or to be
filed as exhibits to the Registration Statement that are not described and
filed as required;
(vi) This Underwriting Agreement has been duly authorized,
executed and delivered by the Company; the execution, delivery and
performance of this Underwriting Agreement and the consummation of the
transactions contemplated herein will not result in a breach or violation
of any of the terms and provisions of, or constitute a default under, the
charter or by-laws of the Company, or any statute known to such counsel
applicable to the Company; and, to the knowledge of such counsel, no
consent, approval, authorization or order of, or filing with, any court or
governmental agency or body is required for the consummation of the
transactions contemplated by this Underwriting Agreement in connection
with the issuance or sale of the Shares by the Company, except such as
have been obtained under the 1933 Act and such as may be required under
state securities laws in connection with the purchase and distribution of
the Shares by you;
(vii) For all applicable tax years as to which the Company's
tax returns are subject to audit and the Company is subject to assessment
for taxes reportable therein, the Company has continuously been organized
and operated in conformity with the requirements for qualification as a
"real estate investment trust" under the Code;
(viii) None of the Company or its subsidiaries is an
"investment company" within the meaning of the Investment Company Act of
1940, as amended;
(ix) To the knowledge of such counsel, the Company satisfies
all conditions and requirements for the use of a Registration Statement on
Form S-3 under the 1933 Act and the 1933 Act Rules and Regulations.
Such counsel shall also include a statement in such opinion to the effect that:
13
<PAGE> 14
(i) Such counsel has reviewed the Registration Statement and
the Prospectus and participated in conferences with officers and other
representatives of the Company at which contents of the Registration
Statement and related matters were discussed and based on such review and
participation, nothing has come to the attention of such counsel that
leads such counsel to believe that either any part of the Registration
Statement, when such part became effective, contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading
or that the Prospectus and any amendment or supplement thereto, on the
date of filing thereof with the Commission and at the Closing Date,
included an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and
(ii) Other than as disclosed in the Prospectus, to the best of
such counsel's knowledge and without such counsel having made any
investigation of any governmental records or court dockets or taken any
other similar action, there is no litigation or governmental or other
proceeding or investigation, before any court or before or by any public
body or board pending or, or to such counsel's knowledge, threatened
against, or involving the assets, properties or businesses of, the Company
or any of its Subsidiaries, involving the Company's or any of its
Subsidiaries' officers or directors or to which any of the Company's or
any of its Subsidiaries' properties or other assets is subject which would
have a material adverse effect upon the assets or properties, business,
results of operations, prospects or condition (financial or otherwise) of
the Company or its Subsidiaries taken as a whole.
(b) You shall have received from Goodwin, Procter & Hoar LLP, your
counsel, such opinion or opinions, dated the Closing Date, with respect to the
organization of the Company, the validity of the Shares, the Registration
Statement, the Prospectus and other related matters as you reasonably may
request, and such counsel shall have received such papers and information as
they request to enable them to pass upon such matters.
(c) At the time of execution of this Underwriting Agreement and at
the Closing Date, you shall have received letters from C&L and D&T, dated at the
date of delivery thereof, to the effect set forth in Exhibit I hereto.
(d) You shall have received from the Company a certificate, signed
by the president or a vice president and by the principal financial or
accounting officer of the Company, dated the Closing Date, to the effect that,
to the best of their knowledge based upon reasonable investigation:
(i) The representations and warranties of the Company in this
Underwriting Agreement are true and correct, as if made at and as of the
Closing Date, and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied at
or prior to the Closing Date;
14
<PAGE> 15
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceeding for that purpose
has been instituted or is threatened, by the Commission; and
(iii) Since the effective date of the Registration Statement,
there has occurred no event required to be set forth in an amendment or
supplement to the Registration Statement or Prospectus that has not been
so set forth, and there has been no document required to be filed under
the 1934 Act and the 1934 Act Rules and Regulations that upon such filing
would be deemed to be incorporated by reference in the Prospectus that has
not been so filed.
(e) The Shares shall have been duly authorized for listing by the
NYSE upon official notice of issuance.
(f) None of the Company or its Subsidiaries or any Property shall
have sustained since the date of the latest financial statements included in the
Prospectus any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus or (ii) since such date there shall not
have been any change in the capital stock or long-term debt of the Company or
any change, or any development involving a prospective change, in or affecting
any Property or the general affairs, management, financial position,
stockholders' or partners' equity, as applicable, or results of operations of
the Company, otherwise than as set forth or contemplated in the Prospectus, the
effect of which, in any such case described in clause (i) or (ii), is, in your
reasonable judgment, so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares
being delivered on the Closing Date on the terms and in the manner contemplated
in the Prospectus.
(g) To the extent required by its rules, the NASD shall have
approved the underwriting terms and arrangements and such approval shall not
have been withdrawn or limited.
(h) All such opinions, certificates, letters and other documents
will be in compliance with the provisions hereof only if they are satisfactory
in form and substance to you and your counsel. The Company will furnish you with
such conformed copies of such opinions, certificates, letters and other
documents as you shall reasonably request and the Company shall furnish to you
such further certificates and documents as you shall have reasonably requested.
6. Indemnification and Contribution.
(a) The Company and the Operating Partnership will jointly and
severally indemnify and hold harmless you and your directors, officers,
employees and agents and each person, if any, who controls you within the
meaning of Section 15 of the 1933 Act or Section
15
<PAGE> 16
20 of the 1934 Act from and against any and all losses, claims, liabilities,
expenses and damages (including, but not limited to, any and all investigative,
legal and other expenses reasonably incurred in connection with, and any and all
amounts paid in settlement of, any action, suit or proceeding between any of the
indemnified parties and any indemnifying parties or between any indemnified
party and any third party, or otherwise, or any claim asserted), as and when
incurred, to which you, or any such person, may become subject under the 1933
Act, the 1934 Act or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, liabilities, expenses
or damages arise out of or are based on (i) any untrue statement or alleged
untrue statement of a material fact contained in any preliminary prospectus, the
Registration Statement or the Prospectus or any amendment or supplement to the
Registration Statement or the Prospectus or in any documents filed under the
1934 Act and deemed to be incorporated by reference into the Prospectus, or in
any application or other document executed by or on behalf of the Company or
based on written information furnished by or on behalf of the Company filed in
any jurisdiction in order to qualify the Shares under the securities laws
thereof or filed with the Commission, (ii) the omission or alleged omission to
state in such document a material fact required to be stated in it or necessary
to make the statements in it not misleading or (iii) any act or failure to act
by you in connection with, or relating in any manner to, the Shares or the
offering contemplated hereby, and which is included as part of or referred to in
any loss, claim, liability, expense or damage arising out of or based upon
matters covered by clause (i) or (ii) above (provided that neither the Company
nor the Operating Partnership shall be liable under this clause (iii) to the
extent it is finally judicially determined by a court of competent jurisdiction
that such loss, claim, liability, expense or damage resulted directly from any
such acts or failures to act undertaken or omitted to be taken by you through
gross negligence or willful misconduct); provided that the Company will not be
liable to the extent that such loss, claim, liability, expense or damage arises
from the sale of the Shares to any person by you and is based on an untrue
statement or omission or alleged untrue statement or omission made in reliance
on and in conformity with information relating to you furnished in writing to
the Company by you expressly for inclusion in the Registration Statement, any
preliminary prospectus or the Prospectus.
(b) Each Underwriter will indemnify and hold harmless the Company
and each person, if any, who controls the Company within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act, and each officer or director
of the Company who signs the Registration Statement to the same extent as the
foregoing indemnity from the Company to you, but only insofar as losses, claims,
liabilities, expenses or damages arise out of or are based on any untrue
statement or omission or alleged untrue statement or omission made in reliance
on and in conformity with information relating to any Underwriter furnished in
writing to the Company by such Underwriter expressly for use in the Registration
Statement or the Prospectus. This indemnity will be in addition to any liability
that any Underwriter might otherwise have; provided, however, that in no case
shall any Underwriter be liable or responsible for any amount in excess of the
underwriting discounts and commissions received by such Underwriter.
16
<PAGE> 17
(c) Any party that proposes to assert the right to be indemnified
under this Section 6 will, promptly after receipt of notice of commencement of
any action against such party in respect of which a claim is to be made against
an indemnifying party or parties under this Section 6, notify each such
indemnifying party of the commencement of such action, enclosing a copy of all
papers served, but the omission so to notify such indemnifying party will not
relieve it from any liability that it may have to any indemnified party under
the foregoing provisions of this Section 6 unless, and only to the extent that,
such omission results in the forfeiture of substantive rights or defenses by the
indemnifying party. If any such action is brought against any indemnified party
and it notifies the indemnifying party of its commencement, the indemnifying
party will be entitled to participate in and, to the extent that it elects by
delivering written notice to the indemnified party promptly after receiving
notice of the commencement of the action from the indemnified party, jointly
with any other indemnifying party similarly notified, to assume the defense of
the action, with counsel satisfactory to the indemnified party, and after notice
from the indemnifying party to the indemnified party of its election to assume
the defense, the indemnifying party will not be liable to the indemnified party
for any legal or other expenses except as provided below and except for the
reasonable costs of investigation subsequently incurred by the indemnified party
in connection with the defense. The indemnified party will have the right to
employ its own counsel in any such action, but the fees, expenses and other
charges of such counsel will be at the expense of such indemnified party unless
(i) the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (ii) the indemnified party has reasonably
concluded (based on advice of counsel) that there may be legal defenses
available to it or other indemnified parties that are different from or in
addition to those available to the indemnifying party, (iii) a conflict or
potential conflict exists (based on advice of counsel to the indemnified party)
between the indemnified party and the indemnifying party (in which case the
indemnifying party will not have the right to direct the defense of such action
on behalf of the indemnified party) or (iv) the indemnifying party has not in
fact employed counsel to assume the defense of such action within a reasonable
time after receiving notice of the commencement of the action, in each of which
cases the reasonable fees, disbursements and other charges of counsel will be at
the expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm admitted to
practice in such jurisdiction at any time for all such indemnified party or
parties. All such fees, disbursements and other charges will be reimbursed by
the indemnifying party promptly as they are incurred. An indemnifying party will
not be liable for any settlement of any action or claim effected without its
written consent (which consent will not be unreasonably withheld). No
indemnifying party shall, without the prior written consent of each indemnified
party, settle or compromise or consent to the entry of any judgment in any
pending or threatened claim, action or proceeding relating to the matters
contemplated by this Section 6 (whether or not any indemnified party is a party
thereto), unless such settlement, compromise or consent includes a unconditional
release of each indemnified party from all liability arising or that may arise
out of such claim, action or proceeding. Notwithstanding any other provision of
this Section 6(c), if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified
17
<PAGE> 18
party for fees and expenses of counsel, such indemnifying party agrees that it
shall be liable for any settlement effected without its written consent if (i)
such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 6 is applicable in accordance with its terms but for
any reason is held to be unavailable from the Company or you, the Company and
you will contribute to the total losses, claims, liabilities, expenses and
damages (including any investigative, legal and other expenses reasonably
incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claim asserted, but after deducting any contribution
received by the Company from persons other than you, such as persons who control
the Company within the meaning of the 1933 Act and officers of the Company who
signed the Registration Statement, who also may be liable for contribution) to
which the Company and you may be subject in such proportion as shall be
appropriate to reflect the relative benefits received by the Company on the one
hand and you on the other. The relative benefits received by the Company on the
one hand and you on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received by
the Company bear to the total underwriting discounts and commissions received by
you, in each case as set forth in the table on the cover page of the Prospectus
Supplement. If, but only if, the allocation provided by the foregoing sentence
is not permitted by applicable law, the allocation of contribution shall be made
in such proportion as is appropriate to reflect not only the relative benefits
referred to in the foregoing sentence but also the relative fault of the
Company, on the one hand, and you, on the other, with respect to the statements
or omissions which resulted in such loss, claim, liability, expense or damage,
or action in respect thereof, as well as any other relevant equitable
considerations with respect to such offering. Such relative fault shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or you, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by an indemnified
party as a result of the loss, claim, liability, expense or damage, or action in
respect thereof, referred to above in this Section 6(d) shall be deemed to
include, for purpose of this Section 6(d), any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 6(d), you shall not be required to contribute any amount in excess of
the underwriting discounts, commissions and other compensation received by you
and no person found guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) will be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 6(d), any person who controls a party to this Underwriting
Agreement within the meaning of the 1933 Act will have the same
18
<PAGE> 19
rights to contribution as that party, and each officer of the Company who signed
the Registration Statement will have the same rights to contribution as the
Company, subject in each case to the provisions hereof. Any party entitled to
contribution, promptly after receipt of notice of commencement of any action
against such party in respect of which a claim for contribution may be made
under this Section 6(d), will notify any such party or parties from whom
contribution may be sought but the omission so to notify will not relieve the
party or parties from whom contribution may be sought from any other obligation
it or they may have under this Section 6(d). Except for a settlement entered
into pursuant to the last sentence of Section 6(c) hereof, no party will be
liable for contribution with respect to any action or claim settled without its
written consent (which consent will not be unreasonably withheld).
(e) The indemnity and contribution agreements contained in this
Section 6 and the representations and warranties of the Company contained in
this Underwriting Agreement shall remain operative and in full force and effect
regardless of (i) any investigation made by or on behalf of the Underwriters,
(ii) acceptance of the Shares and payment therefore or (iii) any termination of
this Underwriting Agreement.
7. Representations and Agreements to Survive Delivery. All
representations, warranties and agreements of the Company contained herein or in
certificates delivered pursuant hereto, and your agreements contained in Section
6 hereof, shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of you or any controlling persons, or the
Company or any of its officers or any controlling persons, and shall survive
delivery of and payment for the Shares hereunder.
8. Termination. The obligations of the Underwriters under this Agreement
may be terminated at any time on or prior to the Closing Date (or, with respect
to the Option Shares, on or prior to the Option Closing Date), by notice to the
Company from PaineWebber Incorporated, without liability on the part of any
Underwriter to the Company, if, prior to delivery and payment for the Shares (or
the Option Shares, as the case may be), in the sole judgment of PaineWebber
Incorporated, (i) there has been, since the respective dates as of which
information is given in the Registration Statement, any material adverse change
in the Company's business, properties, business prospects, condition (financial
or otherwise) or results of operations, (ii) trading in any of the equity
securities of the Company shall have been suspended by the Commission, the NASD,
by an exchange that lists the Shares or by the Nasdaq Stock Market, (iii)
trading in securities generally on the New York Stock Exchange or the Nasdaq
Stock Market shall have been suspended or limited or minimum or maximum prices
shall have been generally established on such exchange or over the counter
market, or additional material governmental restrictions, not in force on the
date of this Agreement, shall have been imposed upon trading in securities
generally by such exchange or by order of the Commission or the NASD or any
court or other governmental authority, (iv) a general banking moratorium shall
have been declared by either Federal or New York State authorities or (v) any
material adverse change in the financial or securities markets in the United
States or in political, financial or economic conditions in the United States or
any outbreak or material escalation of hostilities or declaration by the United
States of a national emergency or war or
19
<PAGE> 20
other calamity or crises shall have occurred the effect of any of which is such
as to make it, in the sole judgment of PaineWebber Incorporated impracticable or
inadvisable to market the Shares on the terms and in the manner contemplated by
the Prospectus.
9. Reimbursement of Underwriter's Expenses. If the Company shall fail to
tender the Shares for delivery to you by reason of any failure, refusal or
inability on the part of the Company to perform any agreement on its part to be
performed, or because any other condition of your obligations hereunder required
to be fulfilled by the Company is not fulfilled, the Company will reimburse you
for all reasonable out-of-pocket expenses (including fees and disbursements of
counsel) incurred by you in connection with this Underwriting Agreement and the
proposed purchase of the Shares, and upon demand the Company shall pay the full
amount thereof to you.
10. Notices. All notices or communications hereunder shall be in writing
and if sent to you shall be mailed, delivered, telexed or telecopied and
confirmed to the Company at 6430 South Quebec Street, Building 6, Englewood, CO
80111, Attention: Gary P. McDaniel, Telephone (303) 741-3703, Facsimile (303)
704-1620 (with a copy to Jay L. Bernstein, Esq., c/o Rogers & Wells, 200 Park
Avenue, New York, New York 10166, phone 212-878-8527; fax 212-878-8375), or if
sent to the Underwriters, shall be mailed, delivered, telexed or telecopied and
confirmed to 1285 Avenue of the Americas, 19th Floor, New York, NY 10019,
Attention: David R. Jarvis, Telephone: (212) 713-7911, Facsimile: (212) 713-7949
(with copy to Gilbert G. Menna, P.C., c/o Goodwin, Procter & Hoar LLP, Exchange
Place, Boston, MA 02109, Telephone (617) 570-1433, Facsimile: (617) 523-1231).
Any party to this Underwriting Agreement may change such address for notices by
sending to the other party to this Underwriting Agreement written notice of a
new address for such purpose.
11. Parties. This Underwriting Agreement shall inure to the benefit of,
and be binding upon, the Company and you and our respective successors and the
controlling persons and officers referred to in Section 6(a) hereof, and no
other person will have any right or obligation hereunder.
12. Applicable Law. This Underwriting Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Agreement, along with all counterparts, will become a binding agreement
between the Underwriters and the Company and the Operating Partnership in
accordance with its terms.
Very truly yours,
CHATEAU COMMUNITIES, INC.
20
<PAGE> 21
By:
______________________________________
Name:
Title:
CP LIMITED PARTNERSHIP
By: Chateau Communities, Inc.
(one of its general partners)
By:__________________________________
Name:
Title:
By: ROC Communities, Inc.
(its other general partner)
By:__________________________________
Name:
Title:
ACCEPTED as of the date first above written
PAINEWEBBER INCORPORATED
A.G. EDWARDS & SONS, INC.
By: PaineWebber Incorporated
By:____________________________
Name:
Title:
21
<PAGE> 22
EXHIBIT I
FORM OF C&L AND D&T COMFORT LETTERS
22
<PAGE> 23
SCHEDULE I
LIST OF SUBSIDIARIES OF THE COMPANY
23
<PAGE> 24
SCHEDULE II
UNDERWRITERS
<TABLE>
<CAPTION>
Name of Underwriters Number of Firm Shares to be Purchased
-------------------- -------------------------------------
<S> <C>
PaineWebber Incorporated
A.G. Edwards & Sons, Inc.
Total .......................... 2,000,000
=========
</TABLE>
24
