<PAGE>
EXHIBIT 1
CHATEAU COMMUNITIES, INC.
(a Maryland Corporation)
CP LIMITED PARTNERSHIP
(a Maryland limited partnership)
$50,000,000 8.00% Senior Notes due 2003
UNDERWRITING AGREEMENT
July 27, 2000
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION (the "Underwriter")
277 Park Avenue
New York, NY 10172
Ladies and Gentlemen:
CP Limited Partnership, a Maryland limited partnership (the "Operating
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Partnership"), proposes to issue and sell $50,000,000 aggregate principal amount
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of its 8.00% Senior Notes due 2003 (the "Debt Securities"), the terms of which
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are set forth in Exhibit A hereto, to the Underwriter named in Schedule I
hereto.
The Debt Securities will be issued pursuant to the provisions of a
supplemental indenture dated as of the Closing Time (as defined herein) (the
"Supplemental Indenture") to the indenture dated as of December 19, 1997 (the
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"Indenture") between the Operating Partnership and Bank One Trust Company, NA
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(as a successor in interest to The First National Bank of Chicago), as trustee
(the "Trustee").
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On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Operating Partnership
agrees to issue and sell, and the Underwriter agrees to purchase from the
Operating Partnership the principal amount of Debt Securities set forth opposite
the name of the Underwriter in Schedule I hereto at the purchase price set forth
on Exhibit A hereto (the "Purchase Price").
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Chateau Communities, Inc., a Maryland corporation (the "Company"), and the
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Operating Partnership have filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (Nos. 333-38898-01 and
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333-38898, respectively) for the registration of the Debt Securities under the
Securities Act of 1933, as amended (the "1933 Act"), and the offering thereof
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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
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and the Operating Partnership have filed such post-effective amendments thereto
as may be required prior to the date hereof. Such registration statement (as so
amended, if applicable) has been declared effective by the Commission. Such
registration statement is referred to herein as the "Registration Statement";
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and the final prospectus and the final prospectus supplement relating to the
offering of the Debt Securities, in the form first furnished to the Underwriter
by the Operating Partnership for use in connection with the offering of the Debt
Securities, are collectively referred to herein as the "Prospectus"; provided,
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however, that all
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references to the "Registration Statement" and the "Prospectus" shall also be
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deemed to include all documents incorporated therein by reference pursuant to
the Securities Exchange Act of 1934, as amended (the "1934 Act"), prior to the
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Closing Time. For purposes of this Agreement, all references to the Registration
Statement, Prospectus or to any amendment or supplement to any of the foregoing
shall be deemed to include any copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system.
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" (or other
references of like import) in the Registration Statement or Prospectus shall be
deemed to mean and include all such financial statements and schedules and other
information which is incorporated by reference in the Registration Statement or
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement or Prospectus shall be
deemed to mean and include the filing of any document under the 1934 Act which
is incorporated by reference in the Registration Statement or Prospectus, as the
case may be.
SECTION 1. Representations and Warranties.
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(a) Representations and Warranties by the Company and the Operating
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Partnership. The Company and the Operating Partnership, jointly and severally,
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represent and warrant to the Underwriter as of the date hereof and as of the
Closing Time, as follows:
(1) Compliance with Registration Requirements. The Registration Statement, at
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the time the Registration Statement became effective, did not, and at each
time thereafter on which any amendment to the Registration Statement becomes
effective or each of the Company and the Operating Partnership files an Annual
Report on Form 10-K with the Commission, 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 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 or the Operating
Partnership in writing by the Underwriter expressly for use in the
Registration Statement or Prospectus.
(2) Incorporated Documents. The documents incorporated or deemed to be
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incorporated by reference in the Registration Statement and the Prospectus
(the "Incorporated Documents"), at the time they were or hereafter are filed
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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
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together with the other information in the Prospectus, at the time the
Registration Statement became effective and as of the Closing Time or during
the period specified in Section 3(f) hereof, 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.
(3) Independent Accountants. The accountants who certified the financial
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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.
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(4) Financial Statements. The historical consolidated financial statements of
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each of the Operating Partnership and the Company, including the related notes
and schedules thereto, included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the financial
position of the Operating Partnership and the Company, respectively, as at the
dates indicated and the results of operations for the periods specified. If
applicable, the historical financial information including the notes thereto
for properties or other assets included in or incorporated by reference into
the Registration Statement and Prospectus present fairly the stated financial
information for such specific property or asset. Except as otherwise stated in
the Registration Statement, said historical consolidated financial statements
of the Operating Partnership and the Company, respectively, and, if
applicable, the specific properties or other assets, have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved, and all adjustments
necessary for a fair presentation of results for such periods have been made.
The supporting schedules included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the information
required to be stated therein; and the selected financial data (both
historical and pro forma) included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with the related
financial statements presented therein to the extent derived from such
financial statements.
(5) No Significant Subsidiaries. The Operating Partnership has no
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"significant subsidiaries," as such term is defined in Rule 1-02 of Regulation
S-X promulgated under the 1933 Act.
(6) No Material Adverse Change in Business. Since the respective dates as of
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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 considered
as one enterprise or the Operating Partnership and its subsidiaries considered
as one enterprise, or any of the real property or improvements thereon owned
by the Company, the Operating Partnership or any of their respective
subsidiaries (each individually, a "Property" and collectively, the
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"Properties"), whether or not arising in the ordinary course of business, (b)
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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 or acquisitions by the Company, the Operating
Partnership or any of their respective subsidiaries, other than those in the
ordinary course of business or disclosed in the Prospectus, which are material
with respect to the Company and its subsidiaries considered as one enterprise
or the Operating Partnership and its subsidiaries considered as one
enterprise, and (d) except for regular quarterly distributions on the
Company's common stock and the Operating Partnership's common and preferred
units of limited partner interest, there has been no dividend or distribution
of any kind declared, paid or made by the Company or any of its subsidiaries
on any class of its capital stock or by the Operating Partnership or any of
its subsidiaries with respect to its partnership interests or any class of its
capital stock. As used in this Agreement, the term subsidiary as it relates to
the Operating Partnership includes any corporation, limited liability company,
limited or general partnership, joint venture or other entity through which
the Operating Partnership owns a controlling interest, either directly or
indirectly, in a Property.
(7) Good Standing of the Company. The Company has been duly incorporated and
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is validly existing as a corporation in good standing under the laws of the
State of Maryland, with corporate 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 Company is duly qualified as a foreign corporation to transact
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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 or the Operating Partnership and its subsidiaries considered as one
enterprise or the Properties, collectively; and, except for the Operating
Partnership, The Windsor Corporation, a California corporation, and its parent
and other corporations that hold 1% or smaller interests in subsidiary
partnerships, the Company owns no material amounts of stock or other
beneficial interest in any corporation, limited liability company,
partnership, joint ventures or other business entity.
(8) Operating Partnership. The Amended and Restated Agreement of Limited
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Partnership of the Operating Partnership (the "Partnership Agreement") has
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been duly and validly authorized, executed and delivered by the Company and is
a valid and binding agreement, enforceable against the Company, as general
partner, in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting creditors' rights generally and by general principles of equity. To
the Company's knowledge, the Partnership Agreement has been duly executed and
delivered by the other parties thereto and is a valid and binding agreement,
enforceable against such parties in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting creditors' rights generally and by general
principles of equity. The Operating Partnership has been duly formed and is
validly existing as a limited partnership, limited liability company or
corporation, as the case may be, in good standing under the laws of its state
of organization with partnership, limited liability company or corporate power
and authority, as the case may be, to own, lease and operate its properties,
to conduct the business in which it is engaged or proposes to engage as
described in the Prospectus and to enter into and perform its obligations
under this Agreement. The Operating Partnership is duly qualified or
registered as a foreign partnership, limited liability company or corporation,
as the case may be, and is in good standing in each jurisdiction in which such
qualification or registration 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 register 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 or the Properties, collectively. The Company owns, directly and
through ROC Communities (the other general partner of the Operating
Partnership), an approximate 89% general partner interest in the Operating
Partnership. Except as otherwise stated in the Prospectus, all of the issued
and outstanding capital stock or other ownership interests in each subsidiary
have been duly authorized and validly issued, are fully paid and non-
assessable and are owned by the Operating Partnership, directly or indirectly,
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 the Operating Partnership or any of its
respective subsidiaries as described in the Prospectus and except for security
interests which would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company or any of its subsidiaries considered as one
enterprise or the Operating Partnership or any of its subsidiaries considered
as one enterprise or the Properties, collectively.
(9) Authorization of this Agreement by the Company and the Operating
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Partnership. The Company and the Operating Partnership have the requisite
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authority to enter into this
<PAGE>
Agreement and this Agreement has been duly authorized, executed and delivered
by the Company and the Operating Partnership.
(10) Authorization of Debt Securities. The Debt Securities have been duly
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authorized by the Operating Partnership for issuance and sale pursuant to this
Agreement. The Debt Securities, when issued and authenticated in the manner
provided for in the Indenture and delivered against payment of the
consideration therefor, will constitute valid and binding obligations of the
Operating Partnership, enforceable against the Operating Partnership in
accordance with their terms, except as the enforcement thereof may be limited
by bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally or by general
equitable principles (regardless of whether enforcement is considered in a
proceeding in equity or at law). The Debt Securities will be in the form
contemplated by, and each registered holder thereof is entitled to the
benefits of, the Indenture and the Supplemental Indenture.
(11) Authorization of the Indenture. The Indenture has been duly authorized,
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executed and delivered by the Operating Partnership and, assuming due
authorization, execution and delivery thereof by the Trustee, constitutes a
valid and binding agreement of the Operating Partnership, enforceable against
the Operating Partnership in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally or by general equitable principles (regardless of
whether enforcement is considered in a proceeding in equity or at law). The
Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended (the "1939 Act"), and the rules and regulations of the Commission
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under the 1939 Act (the "1939 Act Regulations").
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(12) Descriptions of the Debt Securities. The Debt Securities will conform in
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all material respects to the statements relating thereto contained in the
Prospectus and will be in substantially the form filed or incorporated by
reference, as the case may be, as an exhibit to the Registration Statement.
(13) Absence of Defaults and Conflicts. Neither the Company nor the Operating
---------------------------------
Partnership is in violation of its charter, by-laws, agreement of limited
liability company, agreement of limited partnership or other organizational
documents or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which the Company or the Operating Partnership 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 the Operating Partnership 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 it subsidiaries considered as one
enterprise or the Operating Partnership and its subsidiaries considered as one
enterprise; and the execution, delivery and performance of this Agreement and
the Indenture and the consummation of the transactions contemplated herein and
therein and compliance by the Company (with respect to this Agreement only)
and the Operating Partnership, each severally, with obligations hereunder and
thereunder have been duly authorized by all necessary action, and will not
conflict with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or the Operating Partnership pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to which
the Company or the
<PAGE>
Operating Partnership is a party or by which any of them may be bound, or to
which any of the property or assets of the Operating Partnership 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 or the Operating Partnership and its
subsidiaries considered as one enterprise, nor will such action result in any
violation of the charter, by-laws, agreement of limited liability company,
agreement of limited partnership or other organizational documents of the
Company or the Operating Partnership or any applicable law, administrative
regulation or administrative or court decree, 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 or
the Operating Partnership and its subsidiaries considered as one enterprise.
(14) REIT Qualification. Commencing with the Company's first taxable year
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ended December 31, 1993, the Company has been organized in conformity with the
requirements for qualification as a real estate investment trust ("REIT")
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under the Internal Revenue Code of 1986, as amended (the "Code"), and the
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Company's method of operation will enable it to meet the requirements for
taxation as a REIT under the Code.
(15) Absence of Proceedings. Other than as disclosed or incorporated by
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reference into the Prospectus, there is no action, suit or proceeding before
or brought by any court or governmental agency or body, domestic or foreign,
now pending, or, to the knowledge of the Company or the Operating Partnership,
threatened against or affecting the Company or the Operating Partnership 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 the Operating Partnership and its subsidiaries considered as one
enterprise, or which might materially and adversely affect the property or
assets thereof and the Properties, collectively, or which might materially and
adversely affect the consummation of this Agreement or the transactions
contemplated herein or in the Indenture; and all pending legal or governmental
proceedings to which the Company or the Operating Partnership is a party or of
which any property or assets of the Operating Partnership or the Properties is
subject which are not described in or incorporated by reference into the
Prospectus, including ordinary routine litigation incidental to the business,
are, considered in the aggregate, not material.
(16) Accuracy of Exhibits. There are no contracts or documents of the Company
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or the Operating Partnership which are required to be described in the
Registration Statement, the Prospectus or the documents incorporated by
reference therein or to be filed as exhibits thereto by the 1933 Act or by the
1933 Act Regulations which have not been so described and filed as required.
(17) Absence of Further Requirements. No authorization, approval or consent
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of any court or governmental authority or agency is required that has not been
obtained in connection with the consummation by the Company or the Operating
Partnership of the transactions contemplated by this Agreement and the
Indenture except such as may be required under the 1933 Act or the 1933 Act
Regulations, the 1934 Act or the 1934 Act Regulations, the 1939 Act or the
1939 Act Regulations, state securities laws, real estate syndication laws or
under the rules and regulations of the National Association of Securities
Dealers, Inc. (the "NASD").
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<PAGE>
(18) Possession of Intellectual Property. The Company, the Operating
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Partnership and their respective subsidiaries are not required to own or
possess any trademarks, service marks, trade names or copyrights in order to
conduct the business to be operated by them.
(19) Possession of Licenses and Permits. Each of the Company, the Operating
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Partnership and their respective subsidiaries possess, or have made
application for, such certificates, authorities or permits issued by the
appropriate state, federal or foreign regulatory agencies or bodies necessary
to conduct the businesses to be conducted by it, except for such certificates,
authorities or permits, the failure to obtain, maintain or possess, would not
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 or the Operating Partnership and its
subsidiaries considered as one enterprise; and the Company, the Operating
Partnership and any of their respective subsidiaries have not received any
written 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 or the Operating Partnership and its subsidiaries
considered as one enterprise.
(20) Title to Property. (a) The Operating Partnership or its subsidiaries, as
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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 the Company and its
subsidiaries considered as one enterprise or of 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 Operating Partnership 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 or the Operating
Partnership , 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 the Operating Partnership does not know 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 prospects the Company and its subsidiaries
considered as one enterprise or of the Operating Partnership and its
subsidiaries considered as one enterprise; (d) no tenant under any of the
leases pursuant to which 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 earnings, business affairs or business prospects of 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.
<PAGE>
(21) Title Insurance. The Operating Partnership or its subsidiaries have
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obtained or have the benefit of title insurance on all the Properties
described in the Prospectus as owned by the Operating Partnership or its
subsidiaries in an amount as is customary for companies engaged in business
similar to the Operating Partnership or its subsidiaries.
(22) Investment Company Act. The Company, the Operating Partnership and any
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of their respective subsidiaries are not, and upon the issuance and sale of
the Debt Securities as herein contemplated and the application of the net
proceeds therefrom as described in the Prospectus will not be, an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
(23) Environmental Laws. Except as disclosed in the Prospectus, or the
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Incorporated Documents, each of the Company and the Operating Partnership has
no knowledge of (a) the unlawful presence of any substance, material or waste
which is regulated by any federal, state or local governmental or quasi-
governmental authority, including, without limitation, (i) any substance,
material or waste defined, used or listed as a "hazardous waste", "extremely
hazardous waste", "restricted hazardous waste", "hazardous substance",
"hazardous material", "toxic substance" or other similar terms as defined or
used in any Environmental Law (as defined below), (ii) any petroleum products,
asbestos, polychlorinated biphenyls, lead-based paint, flammable explosives or
radioactive materials and (iii) any additional substances or materials which
are hazardous or toxic substances under any Environmental Law relating to the
Properties (collectively, "Hazardous Materials") on any of the Properties or
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of (b) any spill, release, discharge or disposal of Hazardous Materials that
have occurred or are presently occurring at, from or onto any of the
Properties or any properties near or adjacent to the Properties, which
presence or occurrence would materially 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 or
the Operating Partnership and its subsidiaries considered as one enterprise.
Except as disclosed in the Prospectus, in connection with the construction on
or operation and use of the Properties, the Company and the Operating
Partnership represent that the Operating Partnership has no knowledge of any
material failure to comply with all applicable local, state and federal
environmental laws, regulations, ordinances and administrative and judicial
orders relating to the use, generation, recycling, reuse, sale, storage,
handling, transport and disposal of any Hazardous Materials (collectively,
"Environmental Laws") that would have a material adverse effect on the
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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.
(b) Officers' Certificates. Any certificate signed by any officer of the
----------------------
Company in such capacity as general partner of the Operating Partnership or
any of its subsidiaries and delivered to the Underwriter or to its counsel
in connection with the offering of the Debt Securities shall be deemed a
representation and warranty by the Company or the Operating Partnership, as
the case may be, to the Underwriter as to the matters covered thereby on
the date of such certificate.
SECTION 2. Sale and Delivery to Underwriter; Closing.
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(a) Debt Securities. The commitment of the Underwriter to purchase the
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Debt Securities pursuant to this 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.
<PAGE>
(b) Payment. Payment of the Purchase Price for, and delivery of, the Debt
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Securities shall be made at the offices of Clifford Chance Rogers & Wells LLP,
200 Park Avenue, New York, New York, 10186, or at such other place as shall be
agreed upon by the Underwriter and the Operating Partnership, at 10:00 A.M.
(Eastern time) on the third business day after the date hereof, or such other
time not later than ten business days after such date as shall be agreed upon by
the Underwriter and the Operating Partnership (such time and date of payment and
delivery being herein called "Closing Time").
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Payment shall be made to the Operating Partnership by wire transfer of
immediately available funds to a bank account designated by the Operating
Partnership, against delivery to the Underwriter of the Debt Securities to be
purchased by them.
(c) Denominations; Registration. The Debt Securities shall be in such
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denominations and registered in such names as the Underwriter may request in
writing at least one full business day prior to the Closing Time. A Form of the
Debt Securities will be made available for examination by the Underwriter in The
City of New York not later than 2:00 P.M. (Eastern time) on the business day
prior to the Closing Time.
SECTION 3. Covenants of the Company and the Operating Partnership. Each of the
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Company and the Operating Partnership covenants with the Underwriter, as
follows:
(a) The Operating Partnership will prepare a prospectus supplement (a
"Prospectus Supplement") setting forth the number of Debt Securities
----------------------
covered thereby and their terms not otherwise specified in the Prospectus
pursuant to which the Debt Securities are being issued, the name of the
Underwriter participating in the offering and the number of Debt Securities
which the Underwriter has agreed to purchase, the price at which the Debt
Securities are to be purchased by the Underwriter from the Operating
Partnership, the selling concession and reallowance, if any, any delayed
delivery arrangements, and such other information as the Underwriter and
the Operating Partnership deem appropriate in connection with the offering
of the Debt Securities; and the Operating Partnership will, by the close of
business in New York on two business days immediately succeeding the date
hereof, transmit copies of the Prospectus, relating to the Debt Securities,
to the Commission for filing pursuant to Rule 424(b) of the 1933 Act
Regulations and will furnish to the Underwriter as many copies of the
Prospectus (including such Prospectus Supplement) as shall reasonably be
requested.
(b) The Company or the Operating Partnership will notify the Underwriter
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 or other supplement or amendment to
the Prospectus or any document to be filed pursuant to the 1934 Act with
respect to the Registration Statement or the Prospectus relating to the
Debt Securities, (iii) the receipt of any comments from the Commission with
respect to the Registration Statement or the Prospectus relating to the
Debt Securities, (iv) any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the
Prospectus, 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 and the
Operating Partnership 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 relating to the Debt Securities is required
to be delivered under the 1933 Act or the 1934 Act in connection with sales
of the Debt Securities, the Company or the Operating Partnership will give
the Underwriter notice of its intention to file or
<PAGE>
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 Operating Partnership
proposes for use by the Underwriter in connection with an offering of Debt
Securities which differs from the Prospectus on file at the Commission at
the time the Registration Statement first becomes effective, whether or not
such revised Prospectus is required to be filed pursuant to Rule 424(b) of
the 1933 Act Regulations, and will furnish the Underwriter 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 the Underwriter or counsel for the Underwriter shall reasonably
object.
(d) The Company or the Operating Partnership will deliver to the 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 the Underwriter
reasonably requests.
(e) The Operating Partnership will furnish to the 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 Debt
Securities, such number of copies of the Prospectus (as amended or
supplemented) as the 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 Debt Securities
any event shall occur or condition shall exist as a result of which it is
necessary, in the opinion of counsel for the Underwriter or counsel for the
Operating Partnership, 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
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
or the Operating Partnership, as the case may be, 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, in the opinion of counsel to
the Underwriter or Counsel to the Operating Partnership, with such
requirements, and the Company or the Operating Partnership, as the case may
be, will furnish to the Underwriter a reasonable number of copies of such
amendment or supplement.
(g) The Operating Partnership will endeavor, in cooperation with the
Underwriter, to qualify the Debt Securities 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 the Underwriter may
designate; provided, however, that the Operating Partnership shall not be
obligated to qualify as a foreign corporation in any jurisdiction where it
is not so qualified. In each jurisdiction in which the Debt Securities have
been so qualified, the Operating Partnership 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 Debt Securities; provided, however, that the Operating
Partnership shall not be obligated to qualify as a foreign corporation in
any jurisdiction where it is not so qualified.
<PAGE>
(h) The Operating Partnership will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement (in form
complying with the provisions of Rule 158 of the 1933 Act Regulations) for
the purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(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 Debt Securities are to occur.
(j) The Operating Partnership will use the net proceeds received by it from the
sale of the Debt Securities in the manner specified in the Prospectus under
the caption "Use of Proceeds."
(k) The Company or the Operating Partnership, 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 Debt 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.
SECTION 4. Payment of Expenses.
-------------------
(a) Expenses. The Company shall cause the Operating Partnership to pay all
--------
expenses incident to the performance of its obligations under this Agreement,
including (i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, printing and delivery to the
Underwriter of this Agreement, the Indenture and such other documents as may be
required in connection with the offering, purchase, sale, issuance or delivery
of the Debt Securities, (iii) the preparation, issuance and delivery of the Debt
Securities, any certificates for the Debt Securities to the Underwriter,
including any transfer taxes and any stamp or other duties payable upon the
sale, issuance or delivery of the Debt Securities to the Underwriter, (iv) the
fees and disbursements of the Operating Partnership's counsel, accountants and
other advisors or agents (including transfer agents and registrars), as well as
the fees and disbursements of the Trustee and its counsel, (v) the qualification
of the Debt Securities under state securities laws and real estate syndication
laws in accordance with the provisions of Section 3(g) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the Underwriter in
connection therewith and in connection with the preparation, printing and
delivery of the Blue Sky Survey, and any amendment thereto, (vi) the printing
and delivery to the Underwriter of copies of the Prospectus and any amendments
or supplements thereto, (vii) the fees charged by nationally recognized
statistical rating organizations for the rating of the Debt Securities, (viii)
the filing fees incident to, and the reasonable fees and disbursements of
counsel to the Underwriter in connection with, the review, if any, by the NASD
of the terms of the sale of the Debt Securities, and (ix) the reasonable fees
and expenses of the Underwriter acting in the capacity of a "qualified
independent underwriter" (as defined in Rule 2720(b)(15) of the Rules of the
NASD), if applicable.
(b) Termination of Agreement. If this Agreement is terminated by the
------------------------
Underwriter in accordance with the provisions of Section 5 or Section 9(a)(i)
hereof, the Operating Partnership shall reimburse the Underwriter for all of
their out-of-pocket expenses, including the reasonable and documented fees and
disbursements of counsel for the Underwriter.
<PAGE>
SECTION 5. Conditions of Underwriter Obligations. The obligation of the
-------------------------------------
Underwriter to purchase and pay for the Debt Securities are subject to the
accuracy in all material respects of the representations and warranties of the
Company and the Operating Partnership contained in Section 1 hereof or in
certificates of any officer of the Company or the Operating Partnership or any
of their respective subsidiaries delivered pursuant to the provisions hereof, to
the performance by the Company or the Operating Partnership of its covenants and
other obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
---------------------------------------
including any Rule 462(b) Registration Statement, has become effective
under the 1933 Act and no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act and no
proceedings for that purpose shall have been instituted or be pending or
threatened by the Commission, and any request on the part of the Commission
for additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriter. A Prospectus containing
information relating to the description of the Debt Securities, the
specific method of distribution and similar matters shall have been filed
with the Commission in accordance with Rule 424(b)(1), (2), (3), (4) or
(5), as applicable (or any required post-effective amendment).
(b) Opinion of Counsel for the Company and the Operating Partnership. At
----------------------------------------------------------------
Closing Time, the Underwriter shall have received the favorable opinion,
dated as of Closing Time, of Clifford Chance Rogers & Wells LLP, counsel
for the Company and the Operating Partnership, in form and substance
reasonably satisfactory to counsel for the Underwriter, to the effect set
forth in Exhibit B hereto and to such further effect as counsel to the
Underwriter may reasonably request.
(c) Opinion of Counsel for the Underwriter. At Closing Time, the Underwriter
--------------------------------------
shall have received the favorable opinion, dated as of Closing Time, of
Milbank, Tweed, Hadley & McCloy LLP, counsel for the Underwriter, with
respect to the matters set forth in (v) through (x), (xiii) and (xiv),
inclusive, of Exhibit B.
(d) Additional Opinion. In giving their opinions required by subsections (b)
------------------
and (c), respectively, of this Section, Clifford Chance Rogers & Wells LLP
and Milbank, Tweed, Hadley & McCloy LLP shall each additionally state that
nothing has come to their attention that would lead them to believe that
the Registration Statement or any amendment thereto (except for financial
statements, supporting schedules and other financial data, as to which
counsel need make no statement), at the time it became effective (or, if an
amendment to the Registration Statement or an Annual Report on Form 10-K
has been filed by the Company or the Operating Partnership with the
Commission, subsequent to the effectiveness of the Registration Statement,
then at the time such amendment becomes effective or at the time of the
most recent filing of such Annual Report, as the case may be), contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading or that the Prospectus or any amendment or
supplement thereto (except for financial statements, supporting schedules
and other financial data, as to which such counsel need make no statement),
at Closing Time, included or includes an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading. In giving their opinions required by
subsections (b) and (c), respectively, of this Section, Clifford Chance
Rogers & Wells LLP and Milbank, Tweed, Hadley & McCloy LLP may rely, (1) as
to all matters of fact, upon certificates and written statements of
officers and employees of and accountants for the Company and the Operating
Partnership and (2) with respect to certain other matters, upon
certificates of appropriate government officials in such jurisdiction.
<PAGE>
(e) Officers' Certificate. At Closing Time, there shall not have been 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 the Operating Partnership and
its subsidiaries considered as one enterprise, or the Properties,
collectively, whether or not arising in the ordinary course of business,
from that set forth in the Prospectus; no proceedings shall be pending or,
to the knowledge of the Company or the Operating Partnership, threatened
against the Company or the Operating Partnership 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 the Company and its subsidiaries considered as one
enterprise or of the Operating Partnership and its subsidiaries considered
as one enterprise or the Properties, collectively, other than as set forth
in the Prospectus or incorporated therein by reference; and the Underwriter
shall have received a certificate of the President or the Chief Executive
Officer and of the Chief Financial Officer of the Company in such capacity,
and of the 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 in all material respects with the same force and effect as
though made at the Closing Time. As used in this Section 5(e), the term
"Prospectus" means the Prospectus in the form first used to confirm sales
of the Debt Securities.
(f) Accountant's Comfort Letter. At Closing Time, the Underwriter shall have
---------------------------
received from PricewaterhouseCoopers LLP a letter dated such date, in form
and substance reasonably satisfactory to the Underwriter containing
statements and information as set forth in Exhibit C.
(g) Ratings. There shall not have occurred, and no "nationally recognized
-------
statistical rating organization" as such term is defined for purposes of
Rule 436(g)(2) under the 1933 Act shall have publicly announced that it is
considering (i) the downgrading, suspension or withdrawal of, or any review
for a possible change that does not indicate the direction of the possible
change in, any rating assigned to the Operating Partnership or any
securities of the Operating Partnership or (ii) any change in the outlook
for any rating of the Operating Partnership or any securities of the
Operating Partnership.
(h) Termination. If any condition specified in this Section 5 shall not have
-----------
been fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Underwriter by notice to the Operating Partnership at any
time at or prior to the Closing Time and such termination shall be without
liability of any party to any other party except as provided in Section 4
and except that Sections 1, 6, 7 and 8 shall survive any such termination
and remain in full force and effect.
SECTION 6. Indemnification.
---------------
(a) Indemnification of Underwriter. The Company and the Operating
------------------------------
Partnership, jointly and severally, hereby agree to indemnify and hold harmless
the Underwriter and each person, if any, who controls the Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 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) 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
<PAGE>
material fact included in any preliminary prospectus or 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 any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission; provided that any such settlement is effected with the written
consent of the indemnifying party; and
(3) against any and all expense whatsoever, as incurred (including the
documented fees and disbursements of counsel chosen by the Underwriter),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding 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 or the
Operating Partnership by the Underwriter expressly for use in the Registration
Statement (or any amendment thereto) or the Prospectus (or any amendment or
supplement thereto).
(b) Indemnification of Company, Operating Partnership, Directors and
----------------------------------------------------------------
Officers. The Underwriter agrees to indemnify and hold harmless the Company,
--------
the Operating Partnership, the directors, 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 or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, 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 any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company and the Operating Partnership by
the Underwriter expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Actions against Parties; Notification. 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 hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by the Underwriter, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company or the Operating
Partnership. An indemnifying party may participate at its own expense in the
defense of any such action; provided, however, that counsel to the indemnifying
party shall not (except with the consent of the indemnified party) also be
counsel to the indemnified party. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any
<PAGE>
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.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
SECTION 7. Contribution. If the indemnification provided for in Section 6
------------
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company or the
Operating Partnership, on the one hand, and the Underwriter, on the other hand,
from the offering of the Debt Securities or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company or the Operating Partnership,
on the one hand, and the Underwriter, on the other hand, in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company or the Operating Partnership,
on the one hand, and the Underwriter, on the other hand, in connection with the
offering of the Debt Securities shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of such Debt Securities
(before deducting expenses) received by the Company or the Operating Partnership
and the total underwriting discount received by the Underwriter.
The relative fault of the Company or the Operating Partnership, on the one
hand, and the Underwriter, on the other hand, shall be determined by reference
to, among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Operating Partnership or by the
Underwriter and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company, the Operating Partnership and the Underwriter agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in this
Section 7. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
7 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, the Underwriter shall not
be required to contribute any amount in excess of the amount by which the total
price at which the Debt Securities underwritten by it and distributed to the
public were offered to the public exceeds the
<PAGE>
amount of any damages which the Underwriter has otherwise been required to pay
by reason of any such untrue or alleged untrue statement or omission or alleged
omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the Underwriter, and
each director 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 or
Section 20 of the 1934 Act shall have the same rights to contribution as the
Company or the Operating Partnership.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this Agreement or in
certificates of the Operating Partnership or any of its subsidiaries submitted
pursuant hereto or thereto shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Underwriter or
controlling person, or by or on behalf of the Operating Partnership, and shall
survive delivery of and payment for the Debt Securities.
SECTION 9. Termination.
-----------
(a) Underwriting Agreement. The Underwriter may terminate this Agreement,
----------------------
by notice to the Operating Partnership, at any time at or prior to the Closing
Time, if (i) there has been, since the time of execution of this 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 and its
subsidiaries considered as one enterprise or the Operating Partnership and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) there has occurred any material adverse
change in the financial markets in the United States or any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the Underwriter, impracticable to market
the Debt Securities or to enforce contracts for the sale of the Debt Securities,
or (iii) trading in any securities of the Company or the Operating Partnership
has been suspended or materially limited by the Commission or the New York Stock
Exchange, or if trading generally on the New York Stock Exchange or the American
Stock Exchange or in the Nasdaq National Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by either of said exchanges or by such
system or by order of the Commission, the NASD or any other governmental
authority, or (iv) a banking moratorium has been declared by either Federal or
New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section
-----------
9, such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7 and 8 shall survive such termination and remain in full force and effect.
<PAGE>
SECTION 10. 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 Underwriter shall be
directed to Donaldson, Lufkin & Jenrette Securities Corporatoin at 277 Park
Avenue, New York, New York 10172, attention of Stewart Whitman, Managing
Director and notices to the Operating Partnership shall be directed to it at CP
Limited Partnership, 6160 South Syracuse Way, Greenwood Village, Colorado 80111,
attention of Gary P. McDaniel, Chief Executive Officer.
SECTION 11. Parties. This Agreement shall inure to the benefit of and be
-------
binding upon the Company, the Operating Partnership, the Underwriter and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriter, the Company and the Operating Partnership and their
respective successors and the controlling persons and officers and directors
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 any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
parties hereto and their respective successors, 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 Debt Securities
from the Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 12. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND
----------------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES
OF DAY REFER TO NEW YORK CITY TIME.
SECTION 13. Effect of Headings. The Article and Section headings herein are
------------------
for convenience only and shall not affect the construction hereof.
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Operating Partnership a counterpart hereof,
whereupon this Agreement, along with all counterparts, will become a binding
agreement between the Underwriter and the Operating Partnership in accordance
with its terms.
Very truly yours,
CHATEAU COMMUNITIES, INC.
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:
CONFIRMED AND ACCEPTED,
as of the date first above written:
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By:______________________________
Authorized Signatory
