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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report: September 11, 1996
(Date of Earliest Event Reported)
COMMISSION FILE NO. 1-12590
GABLES RESIDENTIAL TRUST
A MARYLAND CORPORATION
I.R.S. EMPLOYER IDENTIFICATION NO. 58-2077868
2859 PACES FERRY ROAD
SUITE 1450
ATLANTA, GEORGIA 30339
TELEPHONE: (770)436-4600
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
- ------ -------
<S> <C>
1.1 Underwriting Agreement between Gables Residential Trust and PaineWebber
Incorporated, dated September 11, 1996, relating to the sale of 1,725,000
Common Shares of Beneficial Interest, par value $0.01 per share (including
225,000 Common Shares pursuant to the underwriter's over-allotment option).
Exhibit A to this Agreement is listed in, and filed with, this exhibit. Exhibits
B, C and D to this Agreement are listed in, but not filed with, this exhibit; such
exhibits have been omitted for purposes of this filing, but will be furnished to the
Commission supplementally upon request.
</TABLE>
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
GABLES RESIDENTIAL TRUST
By: /s/ Marvin R. Banks, Jr.
-------------------------
Date: September 24, 1996 Marvin R. Banks, Jr.
Vice President and Chief
Financial Officer
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EXHIBIT 1.1
1,500,000 Shares
GABLES RESIDENTIAL TRUST
Common Shares of Beneficial Interest
(par value $0.01 per share)
UNDERWRITING AGREEMENT
September 11, 1996
PAINEWEBBER INCORPORATED
1285 Avenue of the Americas
New York, New York 10019
Dear Sirs:
Gables Residential Trust, a Maryland real estate investment
trust (the ``COMPANY''), proposes to sell an aggregate of 1,500,000 shares (the
``FIRM SHARES'') of the Company's common shares of beneficial interest, $.01
par value per share (the ``COMMON SHARES''), to you (hereinafter the
``UNDERWRITER''). The Company has also agreed to grant to the Underwriter an
option (the ``OPTION'') to purchase up to an additional 225,000 Common Shares
(the ``OPTION SHARES'') on the terms and for the purposes set forth in Section
1(b) hereof. The Firm Shares and the Option Shares are hereinafter
collectively referred to as the ``SHARES''.
The public offering price per share for the Shares and the
purchase price per share for the Shares to be paid by the Underwriter shall be
agreed upon by the Company and the Underwriter, and such agreement shall be set
forth in a separate written instrument substantially in the form of Exhibit A
hereto (the ``PRICE DETERMINATION AGREEMENT''). The Price Determination
Agreement may take the form of an exchange of any standard form of written
telecommunication among the Company and the Underwriter and shall specify such
applicable information as is indicated in Exhibit A hereto. The offering of
the Shares will be governed by this Agreement, as supplemented by the Price
Determination Agreement. From and after the date of the execution and delivery
of the Price Determination Agreement, this Agreement shall be deemed to
incorporate, and, unless the context otherwise indicates, all references
contained herein to ``this Agreement'' and to the phrase ``herein'' shall be
deemed to include, the Price Determination Agreement.
The Company confirms as follows its agreements with the
Underwriter.
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I. AGREEMENT TO SELL AND PURCHASE.
(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 the
Underwriter, and the Underwriter agrees to purchase from the Company at the
purchase price per share for the Firm Shares to be agreed upon by the
Underwriter and the Company in accordance with Section 1(c) hereof and set
forth in the Price Determination Agreement, the Firm Shares.
(b) Subject to all the terms and conditions of
this Agreement, the Company grants the Option to the Underwriter to purchase up
to 225,000 Option Shares from the Company at the same price per share as the
Underwriter 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 the Underwriter to the
Company. The date for the closing of the sale of the Option Shares (the
``OPTION CLOSING DATE''), shall be determined by you but shall be no later than
10 days after delivery of the Option Shares Notice. 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. The right to purchase the Option
Shares or any portion thereof may be surrendered and terminated at any time
upon notice by the Underwriter to the Company.
(c) The public offering price per share for the
Firm Shares and the purchase price per share for the Firm Shares to be paid by
the Underwriter shall be agreed upon and set forth in the Price Determination
Agreement.
2. DELIVERY AND PAYMENT. Delivery of the Firm Shares
shall be made to the Underwriter against payment of the purchase price by wire
transfer of same day funds at the office of PaineWebber Incorporated, 1285
Avenue of the Americas, New York, New York 10019. Such payments shall be made
at 10:00 a.m., New York City time, on the fourth business day following the
date of this Agreement (or if the NYSE or American Stock Exchange or Commercial
banks in the City of New York are not open on such day, the next day on which
such exchanges and banks are open), or at such time on such other date, not
later than eight full business days after the date of this Agreement, as may be
agreed upon by the Company and the Underwriter (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 Underwriter (in the manner specified above) will
take place at the offices specified above at the time and date (which may be
the Closing Date) specified in the Option Shares Notice.
If requested by the Underwriter, certificates evidencing the
Shares shall be in definitive form and shall be registered in such names and in
such denominations as the Underwriter 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.
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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 Underwriter shall be borne by the Company. The Company will pay
and save the 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 the Underwriter of the Firm Shares and Option Shares.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents, warrants and covenants to the Underwriter that:
(a) The Company meets the requirements for use of
Form S-3 and a registration statement (Registration No. 33-93672) on Form S-3
relating to the Shares, including a prospectus, has been carefully prepared by
the Company in conformity with the requirements of the Securities Act of 1933,
as amended (the ``ACT''), and the rules and regulations (the ``RULES AND
REGULATIONS'') of the Securities and Exchange Commission (the ``COMMISSION'')
thereunder and has been filed with the Commission and has become effective.
Such registration statement and prospectus may have been amended or
supplemented prior to the date of this Agreement; any such amendment or
supplement was so prepared and filed, and any such amendment filed after the
effective date of such registration statement has become effective. No stop
order suspending the effectiveness of the registration statement has been
issued, and no proceeding for that purpose has been instituted or, to the
Company's knowledge, threatened by the Commission. Copies of such registration
statement and prospectus, any such amendments or supplements and all documents
incorporated by reference therein that were filed with the Commission on or
prior to the date of this Agreement have been delivered or made available to
the Underwriter. A prospectus supplement (the ``PROSPECTUS SUPPLEMENT'')
setting forth the terms of the Common Shares and of their sale and distribution
have been or will be so prepared and will be filed pursuant to Rule 424(b) of
the Rules and Regulations on or before the second business day after the date
hereof (or such earlier time as may be required by the Rules and Regulations).
Any reference herein to the Registration Statement, the Prospectus or any
amendment or supplement thereto shall be deemed to refer to and include the
exhibits thereto (or, in the case of the Prospectus, to the exhibits to the
Registration Statement) and the documents incorporated by reference therein,
and any reference herein to the terms ``amend,'' ``amendment'' or
``supplement'' with respect to Registration Statement or Prospectus shall be
deemed to refer to and include the filing after the execution hereof of any
document with the Commission deemed to be incorporated by reference therein.
(b) Each part of the Registration Statement, when
such part became or becomes effective and 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, including the
financial statements included or to be included or incorporated by reference or
to be incorporated by reference into the Prospectus, conformed or will conform
in all material respects with the requirements of the Act, the Exchange Act,
the rules and regulations thereunder (the ``EXCHANGE ACT RULES AND
REGULATIONS'') and the Rules and Regulations and will contain all statements
required to be stated therein in accordance with the Act, the Exchange Act, the
Exchange Act Rules and Regulations and the Rules and Regulations; each part of
the Registration Statement, when such part became or
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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; and the Prospectus and
any amendment or supplement thereto, on the date of filing thereof with the
Commission and at the 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. The foregoing representations and warranties in this
Section 3(b) do not apply to any statements or omissions made in reliance on
and in conformity with information relating to any Underwriter furnished in
writing to the Company by the Underwriter specifically for inclusion in the
Registration Statement or Prospectus or any amendment or supplement thereto.
The Company acknowledges that the statements set forth under the heading
``Underwriting'' in the Registration Statement, the Prospectus constitute the
only information relating to any Underwriter furnished in writing to the
Company by the Underwriter on behalf of the Underwriter expressly for inclusion
in the Registration Statement or the Prospectus. The Company has not
distributed any offering material in connection with the offering or sale of
the Shares other than the Registration Statement, the Prospectus, or any other
materials, if any, permitted by the Act.
(c) The documents incorporated or to be
incorporated by reference in the Registration Statement, the Prospectus or any
amendment or supplement thereto or from which information is so incorporated by
reference, when they became or become effective or were or are filed with the
Commission, as the case may be, complied or will comply in all material
respects with the requirements of the Act or the Exchange Act, as applicable,
the Exchange Act Rules and Regulations and the Rules and Regulations.
(d) The only subsidiaries (as defined in the
Rules and Regulations) of the Company are the subsidiaries listed on Exhibit D
hereto (the ``SUBSIDIARIES''). The Company and each of its subsidiaries is,
and at the Closing Date will be, an entity duly organized or formed, as the
case may be, and, in the case of an entity that is not a general partnership,
validly existing and in good standing under the laws of the jurisdiction of its
organization or incorporation. The Company and each of its subsidiaries has,
and at the Closing Date will have, full power and authority to conduct all the
activities conducted by it, to own or lease all the assets owned or leased by
it and to conduct its business as described in the Registration Statement and
the Prospectus. The Company and each of its subsidiaries is, and at the
Closing Date will be, duly licensed or qualified to do business and (except
Gables Tennessee Properties, Pin Oak Park Apartments and Pin Oak Green, which
are general partnerships) in good standing as a foreign trust, limited
partnership or corporation, as the case may be, in all jurisdictions in which
the nature of the activities conducted by it or the character of the assets
owned or leased by it makes such licensing or qualification necessary except
where the failure to be so qualified does not have a material adverse effect on
the business, properties, financial position or results of the Company and its
subsidiaries, taken as a whole. Except for the stock or partnership interests
of the subsidiaries and as disclosed in the Registration Statement, the Company
does not own, and at the Closing Date will not own, directly or indirectly, any
shares of stock or any other equity or long-term debt securities of any
corporation or have any equity interest in any firm, partnership, joint
venture, association or other entity. Complete and correct copies of the
Amended and Restated Declaration of Trust and Amended and Restated By-laws of
the Company and the charter documents of each of its subsidiaries and all
amendments thereto have been delivered or made available to the Underwriter,
and no changes therein will be made subsequent to the date hereof and prior to
the Closing Date or, if later, the Option Closing Date.
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(e) The outstanding Common Shares have been, and
the Shares to be issued and sold by the Company upon such issuance and payment
pursuant hereto of the purchase price thereof will be, duly authorized, validly
issued, fully paid and nonassessable and will not be subject to any preemptive
or similar right. The description of the Common Shares in the Registration
Statement and the Prospectus is, and at the Closing Date will be, in all
material respects, complete and accurate. Except as set forth in the
Prospectus, the Company does not have outstanding, and at the Closing Date will
not have outstanding, any options to purchase, or any rights or warrants to
subscribe for, or any securities or obligations convertible into, or any
contracts or commitments to issue or sell, any Common Shares, any shares of
capital stock of any subsidiary or any such warrants, convertible securities or
obligations other than pursuant to the Company's dividend reinvestment plan.
(f) The financial statements and schedules of the
Company included or incorporated by reference in the Registration Statement or
the Prospectus present fairly the consolidated financial condition of the
Company as of the respective dates thereof and the consolidated results of
operations and cash flows of the Company for the respective periods covered
thereby, all in conformity with generally accepted accounting principles
applied on a consistent basis throughout the entire period involved, except as
otherwise disclosed in the Prospectus. No other financial statements or
schedules of the Company are required by the Act, the Exchange Act or the Rules
and Regulations to be included in the Registration Statement or the Prospectus.
Arthur Andersen LLP, independent public accountants (the ``ACCOUNTANTS''), who
have reported on those of such financial statements and schedules which are
audited, are independent accountants with respect to the Company as required by
the Act and the Rules and Regulations. The statements included in the
Registration Statement with respect to the Accountants pursuant to Rule 509 of
Regulation S-K of the Rules and Regulations are true and correct in all
material respects.
(g) The Company maintains a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii) access
to assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(h) Subsequent to the respective dates as of
which information is given in the Registration Statement and the Prospectus and
prior to the Closing Date, except as set forth in or contemplated by the
Registration Statement and the Prospectus, (i) there has not been and will not
have been any change in the capitalization of the Company, or in the business,
properties, business prospects, condition (financial or otherwise) or results
of operations of the Company and its subsidiaries, arising for any reason
whatsoever, other than pursuant to the Company's dividend reinvestment plan,
(ii) neither the Company nor any of its subsidiaries has incurred nor will it
incur any material liabilities or obligations, direct or contingent, nor has it
entered into nor will it enter into any material transactions other than
pursuant to this Agreement and the transactions referred to herein and (iii)
the Company has not and will not have paid or declared any dividends or other
distributions of any kind on any class of its capital stock.
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(i) The Company is not an ``investment company''
or an ``affiliated person'' of, or ``promoter'' or ``principal underwriter''
for, an ``investment company,'' as such terms are defined in the Investment
Company Act of 1940, as amended.
(j) Except as set forth In the Registration
Statement and the Prospectus, there are no actions, suits or proceedings
pending or threatened against or affecting the Company or any of its
subsidiaries or any of their respective officers in their capacity as such,
before or by any Federal or state court, commission, regulatory body,
administrative agency or other governmental body, domestic or foreign, wherein
an unfavorable ruling, decision or finding might materially and adversely
affect the Company or any of its subsidiaries or its business, properties,
business prospects, condition (financial or otherwise) or results of
operations.
(k) The Company and each of its subsidiaries has,
and at the Closing Date will have, (i) all governmental licenses, permits,
consents, orders, approvals and other authorizations necessary to carry on its
business as contemplated in the Prospectus, (ii) complied in all respects with
all laws, regulations and orders applicable to it or its business and (iii)
performed all its obligations required to be performed by it, and is not, and
at the Closing Date will not be, in default, under any indenture, mortgage,
deed of trust, voting trust agreement, loan agreement, bond, debenture, note
agreement, lease, contract or other agreement or instrument (collectively, a
``CONTRACT OR OTHER AGREEMENT'') to which it is a party or by which its
property is bound or affected, the violation of which would have a material
adverse effect on the business, properties, financial position or results of
operations of the Company and its subsidiaries, taken as a whole. To the best
knowledge of the Company and each of its subsidiaries, no other party under any
contract or other agreement to which it is a party is in default in any
material respect thereunder. The Company is not, nor at the Closing Date will
be, in violation of any provision of its Amended and Restated Declaration of
Trust and Amended and Restated By-laws. No subsidiary of the Company is, nor
at the Closing Date will any of them be, in violation of any provision in their
respective charter documents.
(l) No consent, approval, authorization or order
of, or any filing or declaration with, any court or governmental agency or body
is required for the consummation by the Company of the transactions on its part
herein contemplated, except such as have been obtained under the Act or the
Rules and Regulations and such as may be required under state securities or
Blue Sky laws or the by-laws and rules of the National Association of
Securities Dealers, Inc. (the ``NASD'') in connection with the purchase and
distribution by the Underwriter of the Shares to be sold by the Company.
(m) The Company has full corporate power and
corporate authority to enter into this Agreement. This Agreement has been duly
authorized, executed and delivered by the Company and constitutes a valid and
binding agreement of the Company and is enforceable against the Company in
accordance with the terms hereof. The performance of this Agreement and the
consummation of the transactions contemplated hereby will not result in the
creation or imposition of any lien, charge or encumbrance upon any of the
assets of the Company or any of its subsidiaries pursuant to the terms or
provisions of, or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or give any other party a right
to terminate any of its obligations under, or result in the acceleration of any
obligation under, the Amended and Restated Declaration of Trust or Amended and
Restated By-laws of the Company or the charter documents of
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any of its subsidiaries, any contract or other agreement to which the Company
or any of its subsidiaries is a party or by which the Company or any of its
subsidiaries or any of its properties is bound or affected, or violate or
conflict with any judgment, ruling, decree, order, statute, rule or regulation
of any court or other governmental agency or body applicable to the business or
properties of the Company or any of its subsidiaries.
(n) The Company and each of its subsidiaries has
good and marketable title to all properties and assets described in the
Prospectus as owned by it, free and clear of all liens, charges, encumbrances
or restrictions, except such as (i) are described in the Prospectus or (ii) are
not material to the business of the Company or its subsidiaries, taken as a
whole. The Company and each of its subsidiaries has valid, subsisting and
enforceable leases for the properties described in the Prospectus as leased by
it, with such exceptions as are not material and do not materially interfere
with the use made and proposed to be made of such properties by the Company and
such subsidiaries; no tenant under any of the leases pursuant to which the
Company leases its properties has an option or right of first refusal to
purchase the premises demised under such lease; the use and occupancy of each
of the properties of the Company complies in all material respects with all
applicable codes and zoning laws and regulations; the Company has no knowledge
of any pending or threatened condemnation or zoning change that will in any
material respect affect the size of, use of, improvements of, construction on,
or access to any of the properties of the Company; and the Company has no
knowledge of any pending or threatened proceeding or action that will in any
manner affect the size of, use of, improvements on, construction on, or access
to any of the properties of the Company.
(o) Title insurance in favor of the Company (or
the subsidiary which holds title to such property) is maintained with respect
to each of the properties owned by the Company in an amount at least equal to
the greater of (i) the cost of acquisition of such property or (ii) the cost of
construction by the Company 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 and its subsidiaries taken as a
whole. Title insurance in favor of the mortgagee is maintained in an amount
equal to the maximum commitment of the related loan.
(p) The mortgages and deeds of trust encumbering
the properties and assets described in the Prospectus are not convertible nor
does the Company hold a participating interest therein.
(q) 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 (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 and its subsidiaries
taken as a whole. In connection with the construction or operation and use of
the properties owned by the Company, the Company represents that, as of the
date of this 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,
reuse, sale, storage, handling,
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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 and its
subsidiaries taken as a whole.
(r) Property and casualty insurance in favor of
the Company is maintained with respect to each of the properties owned by it in
an amount and on such terms as is reasonable and customary for businesses of
this type.
(s) There is no document or contract of a
character required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement which is
not described or filed as required. All such contracts and all contracts
relating to any tax exempt financings to which the Company or any subsidiary is
a party have been duly authorized, executed and delivered by the Company or
such subsidiary, constitute valid and binding agreements of the Company or such
subsidiary and are enforceable against the Company or such subsidiary in
accordance with the terms thereof.
(t) No statement, representation, warranty or
covenant made by the Company in this Agreement or made in any certificate or
document required by this Agreement to be delivered to the Underwriter was or
will be, when made, inaccurate, untrue or incorrect.
(u) Neither the Company nor any of its trustees,
officers or controlling persons has taken, directly or indirectly, any action
intended, or which might reasonably be expected, to cause or result, under the
Act or otherwise, in, or which has constituted, stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale of
the Shares.
(v) No holder of securities of the Company has
rights to the registration of any securities of the Company because of the
filing of the Registration Statement.
(w) The Shares are duly authorized for listing,
subject to official notice of issuance, on the New York Stock Exchange.
(x) Neither the Company nor any of its
subsidiaries is involved in any material labor dispute nor, to the knowledge of
the Company, is any such dispute threatened.
(y) The Company and its subsidiaries own, or are
licensed or otherwise have the full exclusive right to use, all material
trademarks and trade names which are used in or necessary for the conduct of
their respective businesses as described in the Prospectus. No claims have
been asserted by any person to the use of any such trademarks or trade names or
challenging or questioning the validity or effectiveness of any such trademark
or trade name. The use, in connection with the business and operations of the
Company and its subsidiaries of such trademarks and trade names does not, to
the Company's knowledge, infringe on the rights of any person.
(z) Neither the Company nor any of its
subsidiaries nor, to the Company's knowledge, any employee or agent of the
Company or any subsidiary has made any payment of funds of the Company or any
subsidiary or received or retained any funds in violation of any law, rule or
regulation or of a character required to be disclosed in the Prospectus.
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(aa) The Company has continuously been organized
and operated in conformity with the requirements for qualification as a real
estate investment trust under the Internal Revenue Code of 1986, as amended
(the ``CODE'') for all taxable years commencing with its taxable year ended
December 31, 1994. The Company has filed an election to be taxable as a real
estate investment trust for its taxable year ended December 31, 1994, and such
election has not been terminated. 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 intends to continue to operate in
a manner which would permit it to qualify as a real estate investment trust
under the Code.
4. AGREEMENTS OF THE COMPANY. The Company agrees with
the Underwriter as follows:
(a) The Company will cause the Prospectus
Supplement to be filed as required by Section 3(a) hereof (but only if you 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. The Company will not during such period as the
Prospectus is required by law to be delivered in connection with sales of the
Shares by the Underwriter or a dealer, file any amendment or supplement to the
Registration Statement or the Prospectus, unless a copy thereof shall first
have been submitted to the Underwriter within a reasonable period of time prior
to the filing thereof and the Underwriter shall not have objected thereto in
good faith.
(b) The Company will notify the Underwriter
promptly, and will confirm such advice in writing, (1) when any post-effective
amendment to the Registration Statement becomes effective, (2) of any request
by the Commission for amendments or supplements to the Registration Statement
or the Prospectus or for additional information, (3) of 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 or the threat
thereof, (4) of the happening of any event during the period mentioned in the
second sentence of Section 4(e) that in the judgment of the Company makes any
statement made in the Registration Statement or the Prospectus untrue or that
requires the making of any changes in the Registration Statement or the
Prospectus in order to make the statements therein, in light of the
circumstances in which they are made, not misleading and (5) of receipt by the
Company or any representative or attorney of the Company of any other
communication from the Commission relating to the Company, the Registration
Statement, or the Prospectus. If at any time the Commission shall issue any
order suspending the effectiveness of the Registration Statement, the Company
will make every reasonable effort to obtain the withdrawal of such order at the
earliest possible moment.
(c) The Company will furnish to the Underwriter,
upon request and without charge, two signed copies of the Registration
Statement and of any post-effective amendment thereto, including financial
statements and schedules, and all exhibits thereto (including any document
filed under the Exchange Act and deemed to be incorporated by reference into
the Prospectus).
(d) The Company will comply with all the
provisions of any undertakings contained in the Registration Statement.
(e) The Company will deliver to the Underwriter,
without charge, as many copies of the Prospectus containing the Prospectus
Supplement or any amendment or supplement
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thereto as the Underwriter may reasonably request. The Company consents to the
use of the Prospectus or any amendment or supplement thereto by the Underwriter
and by all dealers to whom the Shares may be sold, both in connection with the
offering or sale of the Shares and for any period of time thereafter during
which the Prospectus is required by law to be delivered in connection
therewith. If during such period of time any event shall occur which in the
judgment of the Company or counsel to the Underwriter should be set forth in
the Prospectus in order to make any statement therein, in the light of the
circumstances under which it was made, not misleading, or if it is necessary to
supplement or amend the Prospectus to comply with law, the Company will
forthwith prepare and duly file with the Commission an appropriate supplement
or amendment thereto, and will deliver to the Underwriter, without charge, such
number of copies of such supplement or amendment to the Prospectus as the
Underwriter may reasonably request. The Company shall not file any document
under the Exchange Act before the termination of the offering of the Shares by
the Underwriter if such document would be deemed to be incorporated by
reference into the Prospectus which is not approved by the Underwriter after
reasonable notice thereof.
(f) Prior to any public offering of the Shares
the Company will cooperate with the Underwriter and counsel to the Underwriter
in connection with the registration or qualification of the Shares for offer
and sale under the securities or Blue Sky laws of such jurisdictions as the
Underwriter may request including, without limitation, other jurisdictions
outside of the United States; provided, that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is not now so
qualified or to take any action which would subject it to general service of
process in any jurisdiction where it is not now so subject.
(g) During the period of five years commencing on
the date hereof, the Company will furnish to the Underwriter of such financial
statements and other periodic and special reports as the Company may from time
to time distribute generally to the holders of any class of its capital stock,
and will furnish to the Underwriter a copy of each annual or other report it
shall be required to file with the Commission.
(h) The Company will make generally available to
holders of its securities as soon as may be practicable but in no event later
than the last day of the fifteenth full calendar month following the end of the
Company's current fiscal quarter, an earnings statement (which need not be
audited but shall be in reasonable detail) for a period of 12 months beginning
after the date upon which the Prospectus Supplement is filed pursuant to Rule
424 under the Act, and satisfying the provisions of Section 11(a) of the Act
(including Rule 158 of the Rules and Regulations).
(i) Whether or not the transactions contemplated
by this Agreement are consummated or this Agreement is terminated, the Company
will pay, or reimburse if paid by the Underwriter, all fees, costs and expenses
incident to the performance of the obligations of the Company under this
Agreement, including but not limited to fees, costs and expenses of or relating
to (1) the preparation, printing and filing of the Registration Statement and
exhibits to it, the Prospectus and any amendment or supplement to the
Registration Statement or the Prospectus, (2) the preparation and delivery of
certificates representing the Shares, (3) the printing of this Agreement and
any Dealer Agreements, (4) furnishing (including costs of shipping and mailing)
such copies of the Registration Statement, the Prospectus and any Preliminary
Prospectus, and all amendments and supplements thereto, as may be requested for
use in connection with the offering and sale of the Shares by the Underwriter
or by dealers to whom Shares may be sold, (5) the listing of the Shares on the
New York
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<PAGE> 11
Stock Exchange, (6) filings required to be made by or on behalf of the Company
or the Underwriter, including without limitation filings to be made by the
Underwriter with the NASD, and the fees, disbursements and other charges of the
Underwriter's counsel for the Underwriters in connection there with and filings
to be made by the Company with the Commission, and the fees, disbursements and
other charges of counsel for the Company in connection therewith, (7) the
registration or qualification of the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions designated pursuant to
Section 4(f), including the fees, disbursements and other charges of counsel to
the Underwriter in connection therewith, and the preparation and printing of
preliminary, supplemental and final Blue Sky memoranda, (8) counsel to the
Company and any surveyors, engineers, appraisers, photographers, accountants
and other professionals engaged by or on behalf of the Company, (9) the
transfer agent and registrar for the Shares, and (10) preparation of slides,
overheads and other presentation material to be used in any "road show" or
other presentation to potential investors and the hotel, travel and other
expenses of the Company's employees in connection with any such "road show" or
presentation; provided, however, that with respect to any fees, disbursements
and other charges of counsel for the Underwriter in connection with (I) filings
made with the NASD and (II) the registration and qualification of the Shares
under Blue Sky laws and the preparation of Blue Sky memorandum, the Company
shall not be responsible for counsel fees, disbursements and other charges in
excess of $15,000. The filing fee paid to the NASD shall not be considered to
be ``fees, disbursements or other charges'' for the purposes of this Section
4(i) and shall be paid by the Company.
(j) If this Agreement shall be terminated by the
Company pursuant to any of the provisions hereof (otherwise than pursuant to
Section 8 hereof) or if for any reason the Company shall be unable to perform
its obligations hereunder, the Company will reimburse the Underwriter for all
out-of-pocket expenses (including the fees, disbursements and other charges of
counsel to the Underwriter) reasonably incurred by it in connection herewith.
(k) The Company will not at any time, directly or
indirectly, take any action intended, or which might reasonably be expected, to
cause or result in, or which will constitute, stabilization of the price of the
Common Shares to facilitate the sale or resale of any of the Shares.
(l) The Company will apply the net proceeds from
the offering and sale of the Shares to be sold by the Company in the manner set
forth in the Prospectus under ``Use of Proceeds.''
(m) The Company will not, and will cause each of
its executive officers to enter into agreements with the Underwriter in the
form set forth in Exhibit B to the effect that they will not, for a period of
90 days after the commencement of the public offering of the Shares, without
the prior written consent of PaineWebber Incorporated, sell, contract to sell
or otherwise dispose of any Common Shares or rights to acquire Common Shares
(other than in the case of the Company pursuant to employee and director stock
options or stock option or purchase plans, the Company's dividend reinvestment
plan, the acquisition of units of Gables Realty Limited Partnership presented
for redemption, and in exchange for property acquired from third-parties and
pursuant to the exercise by the Underwriter of the Option, or in the case of an
individual, the pledge of Common Shares as collateral for any loan from an
institutional lender, provided the loan-to-value ratio does not exceed 50%).
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<PAGE> 12
(n) The Company will not, with respect to the
Shares, invoke the authority granted under Section 5.7 of the Amended and
Restated Declaration of Trust (the ``DECLARATION OF TRUST'') of the Company to
revoke the exception contained in Section 5.6.2 of the Declaration of Trust
under which Common Shares transferred to an underwriter in a public offering
will not be deemed to be Excess Shares (as defined in the Declaration of
Trust), notwithstanding the fact that the Shares owned beneficially by the
Underwriter may exceed the Ownership Limit (as defined in the Declaration of
Trust).
(o) The Company will continue to elect to qualify
as a ``real estate investment trust'' under the Code, and will use its best
efforts to continue to meet the requirements to qualify as a ``real estate
investment trust.''
5. CONDITIONS OF THE OBLIGATIONS OF PAINEWEBBER
INCORPORATED. In addition to the execution and delivery of the Price
Determination Agreement, the obligations of the Underwriter hereunder are
subject to the following conditions:
(a) The Prospectus shall have been filed as
required by Section 3(a) and (i) no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings for that
purpose shall be pending or threatened by the Commission, (ii) no order
suspending the effectiveness of the Registration Statement or the qualification
or registration of the Shares under the securities or Blue Sky laws of any
jurisdiction shall be in effect and no proceeding for such purpose shall be
pending before or threatened or contemplated by the Commission or the
authorities of any such jurisdiction, (iii) any request for additional
information on the part of the staff of the Commission or any such authorities
shall have been complied with to the satisfaction of the staff of the
Commission or such authorities and (iv) after the date hereof no amendment or
supplement to the Registration Statement or the Prospectus shall have been
filed unless a copy thereof was first submitted to the Underwriter and the
Underwriter did not object thereto in good faith, and the Underwriter shall
have received certificates, dated the Closing Date and the Option Closing Date
and signed by the Chief Executive Officer or the Chairman of the Board of
Trustees of the Company and the Chief Financial Officer of the Company (who
may, as to proceedings threatened, rely upon the best of their information and
belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which
information is given in the Registration Statement and the Prospectus, (i)
there shall not have been a material adverse change in the general affairs,
business, business prospects, properties, management, condition (financial or
otherwise) or results of operations of the Company and its subsidiaries, taken
as a whole, whether or not arising from transactions in the ordinary course of
business, in each case other than as set forth in or contemplated by the
Registration Statement and the Prospectus and (ii) neither the Company nor any
of its subsidiaries shall have sustained any material loss or interference with
its business or properties from fire, explosion, flood or other casualty,
whether or not covered by insurance, or from any labor dispute or any court or
legislative or other governmental action, order or decree, which is not set
forth in the Registration Statement and the Prospectus, if in the judgment of
the Underwriter any such development makes it impracticable or inadvisable to
consummate the sale and delivery of the Shares by the Underwriter and at the
public offering price.
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<PAGE> 13
(c) Since the respective dates as of which
information is given in the Registration Statement and the Prospectus, there
shall have been no litigation or other proceeding instituted against the
Company or any of its subsidiaries or any of their respective officers or
directors in their capacities as such, before or by any Federal, state or local
court, commission, regulatory body, administrative agency or other governmental
body, domestic or foreign, in which litigation or proceeding an unfavorable
ruling, decision or finding would materially and adversely affect the business,
properties, business prospects, condition (financial or otherwise) or results
of operations of the Company and its subsidiaries taken as a whole.
(d) Each of the representations and warranties of
the Company contained herein shall be true and correct in all material respects
at the Closing Date and, with respect to the Option Shares, at the Option
Closing Date, as if made at the Closing Date and, with respect to the Option
Shares, at the Option Closing Date, and all covenants and agreements contained
herein to be performed on the part of the Company and all conditions contained
herein to be fulfilled or complied with by the Company at or prior to the
Closing Date and, with respect to the Option Shares, at or prior to the Option
Closing Date, shall have been duly performed, fulfilled or complied with.
(e) The Underwriter shall have received one or
more opinions, dated the Closing Date and, with respect to the Option Shares,
the Option Closing Date, and satisfactory in form and substance to the
Underwriter's counsel from Goodwin, Procter & Hoar LLP, counsel to the Company,
(i) to the effect set forth in Exhibit C and (ii) concerning the qualification
of the Company as a real estate investment trust under the Code.
(f) The Underwriter shall have received an
opinion, dated the Closing Date and the Option Closing Date, from O'Melveny &
Myers LLP, Underwriter's counsel, with respect to the Registration Statement,
the Prospectus and this Agreement, which opinion shall be satisfactory in all
respects to the Underwriter.
(g) Concurrently with the execution and delivery
of this Agreement, the Accountants shall have furnished to the Underwriter a
letter, dated the date of its delivery, addressed to the Underwriter and in
form and substance satisfactory to the Underwriter, confirming that they are
independent accountants with respect to the Company as required by the Act and
the Rules and Regulations and with respect to the financial and other
statistical and numerical information contained in the Registration Statement
or incorporated by reference therein. At the Closing Date and, as to the
Option Shares, the Option Closing Date, the Accountants shall have furnished to
the Underwriter a letter, dated the date of its delivery, which shall confirm,
on the basis of a review in accordance with the procedures set forth in the
letter from the Accountants, that nothing has come to their attention during
the period from the date of the letter referred to in the prior sentence to a
date (specified in the letter) not more than three days prior to the Closing
Date and the Option Closing Date which would require any change in their letter
dated the date hereof if it were required to be dated and delivered at the
Closing Date and the Option Closing Date.
(h) At the Closing Date and, as to the Option
Shares, the Option Closing Date, there shall be furnished to the Underwriter an
accurate certificate, dated the date of its delivery, signed by each of the
Chief Executive Officer and the Chief Financial Officer of the Company, in form
and substance satisfactory to the Underwriter, to the effect that:
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<PAGE> 14
(i) Each signer of such certificate has carefully
examined the Registration Statement and the Prospectus (including any documents
filed under the Exchange Act and deemed to be incorporated by reference into
the Prospectus) and (A) as of the date of such certificate, such documents are
true and correct in all material respects and do not omit to state a material
fact required to be stated therein or necessary in order to make the statements
therein not untrue or misleading and (B) no event has occurred as a result of
which it is necessary to amend or supplement the Prospectus in order to make
the statements therein not untrue or misleading in any material respect and
there has been no document required to be filed under the Exchange Act and the
Exchange Act Rules and Regulations that upon such filing would be deemed to be
incorporated by reference into the Prospectus that has not been so filed.
(ii) Each of the representations and warranties of
the Company contained in this Agreement were, when originally made, and are, at
the time such certificate is delivered,
(iii) Each of the covenants required to be
performed by the Company herein on or prior to the delivery of such certificate
has been duly, timely and fully performed and each condition herein required to
be complied with by the Company on or prior to the date of such certificate has
been duly, timely and fully complied with.
(i) On or prior to the Closing Date, the
Underwriter shall have received the executed agreements referred to in Section
4(m) hereof.
(j) The Shares shall be qualified for sale in
such states as the Underwriter may reasonably request, each such qualification
shall be in effect and not subject to any stop order or other proceeding on the
Closing Date and the Option Closing Date.
(k) Prior to the Closing Date, the Shares shall
have been duly authorized for listing by the New York Stock Exchange upon
official notice of issuance.
(l) The Company shall have furnished to the
Underwriter such certificates, in addition to those specifically mentioned
herein, as the Underwriter may have reasonably requested as to the accuracy and
completeness at the Closing Date and the Option Closing Date of any statement
in the Registration Statement or the Prospectus or any documents filed under
the Exchange Act and deemed to be incorporated by reference into the
Prospectus, as to the accuracy at the Closing Date and the Option Closing Date
of the representations and warranties of the Company herein as to the
performance by the Company of its obligations hereunder or as to the
fulfillment of the conditions concurrent and precedent to the obligations
hereunder of the Underwriter.
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<PAGE> 15
6. INDEMNIFICATION.
(a) The Company will indemnify and hold harmless
the Underwriter, the directors, officers, employees and agents of the
Underwriter, and each person, if any, who controls the Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, liabilities, expenses and damages (and
actions in respect thereof) (including any and all 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), to which
they, or any of them, may become subject under the Act, the Exchange 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 a breach of any representation, warranty, agreement or covenant
made by the Company in this Agreement or based upon an untrue statement or
alleged untrue statement of a material fact contained in 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 Exchange Act
and deemed to be incorporated by reference into the Prospectus, or 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, 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 in the public
offering to any person by the Underwriter 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 the Underwriter furnished in writing to
the Company by the Underwriter expressly for inclusion the Registration
Statement or the Prospectus. The Company acknowledges that the statements set
forth under the heading ``Underwriting'' in the Prospectus constitute the only
information relating to the Underwriter furnished in writing to the Company by
the Underwriter expressly for inclusion in the Registration Statement or the
Prospectus. This indemnity agreement will be in addition to any liability that
the Company might otherwise have.
(b) The Underwriter will indemnify and hold
harmless the Company, each person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, each
trustee of the Company and each officer of the Company who signs the
Registration Statement to the same extent as the foregoing indemnity from the
Company to the Underwriter, but only insofar as losses, claims, liabilities,
expenses or damages (or actions in respect thereof) arise out of or are based
on any untrue statement or omission or alleged untrue statement or omission of
a material fact contained in any part of the Registration Statement when such
part became effective, or in the Prospectus or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made therein in reliance on and in conformity
with information relating to the Underwriter furnished in writing to the
Company by the Underwriter expressly for use in the Registration Statement or
the Prospectus. This indemnity will be in addition to any liability that each
Underwriter might otherwise have. The Company acknowledges that the statements
set forth under the heading ``Underwriting'' in the Registration Statement, and
the Prospectus constitute the only information relating to the Underwriter
furnished in writing to the Company by the Underwriter expressly for inclusion
in the Registration Statement or the Prospectus.
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<PAGE> 16
(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 (1) the
employment of counsel by the indemnified party has been authorized in writing
by the indemnifying party, (2) 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, (3) 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 (4) 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 one 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).
(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 the
Underwriter, the Company and the Underwriter 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 the Underwriter, such as persons who control the Company within the
meaning of the Act, officers of the Company who signed the Registration
Statement and trustees of the Company, who also may be liable for contribution)
to which the Company and the Underwriter may be subject in such proportion as
shall be appropriate to reflect the relative benefits received by the Company
on the one hand and the
16
<PAGE> 17
Underwriter on the other. The relative benefits received by the Company on the
one hand and the Underwriter 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 the Underwriter, in each case as set forth in the table
on the cover page of the Prospectus. 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 the Underwriters, 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 the
Underwriter, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriter agree that it would not be just and equitable
if contributions pursuant to this Section 6(d) were to be determined by pro
rata allocation or by any other method of allocation which does not take into
account the equitable considerations referred to herein. 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), the Underwriter shall not
be required to contribute any amount in excess of the underwriting discounts
received by it, and no person found guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 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 Agreement within the meaning of the Act will have the same
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). 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).
7. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties, agreements and covenants of the Company herein
or in certificates delivered pursuant hereto, and the agreements of the
Underwriter contained in Section 6 hereof, shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of the
Underwriter or any controlling persons, or the Company or any of its officers,
trustees, or any controlling persons, and shall survive (i) termination of this
Agreement and (ii) delivery of and payment for the Shares hereunder.
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<PAGE> 18
8. TERMINATION. The obligations of the Underwriter
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 the Underwriter, without liability on the
part of the 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
the Underwriter, (i) trading in any of the equity securities of the Company
shall have been suspended by the Commission, by an exchange that lists the
Shares or by the National Association of Securities Dealers Automated Quotation
National Market System, (ii) trading in securities generally on the New York
Stock Exchange shall have been suspended or limited or minimum or maximum
prices shall have been generally established on such exchange, 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 any court or other governmental authority,
(iii) a general banking moratorium shall have been declared by either Federal
or New York State authorities or (iv) 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 other calamity or crisis shall have occurred the effect of
any of which is such as to make it, in the sole judgment of the Underwriter,
impracticable or inadvisable to market the Shares on the terms and in the
manner contemplated by the Prospectus.
9. MISCELLANEOUS. Notice given pursuant to any of the
provisions of this Agreement shall be in writing and, unless otherwise
specified, shall be mailed or delivered (a) if to the Company, at the office of
the Company, 2859 Paces Ferry Road, Atlanta, Georgia 30339, Attention: Marcus
E. Bromley, or (b) if to the Underwriter, to the offices of PaineWebber
Incorporated, 1285 Avenue of the Americas, New York, New York 10019, Attention:
Corporate Real Estate Department. Any such notice shall be effective only upon
receipt. Any notice under Section 8 hereof may be made by telex or telephone,
but if so made shall be subsequently confirmed in writing.
This Agreement has been and is made solely for the benefit of
the Underwriter and the Company and of the controlling persons, directors,
trustees, and officers referred to in Section 6, and their respective
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. The term ``successors and assigns'' as
used in this Agreement shall not include a purchaser, as such purchaser, of
Shares from the Underwriter.
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<PAGE> 19
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
This Agreement may be signed in two or more counterparts with
the same effect as if the signatures thereto and hereto were upon the same
instrument.
In case any provision in this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
The Company and the Underwriter each hereby irrevocably waive
any right they may have to a trial by jury in respect of any claim based upon
or arising out of this Agreement or the transactions contemplated hereby.
----------------------------
Please confirm that the foregoing correctly sets forth the
agreement among the Company and the Underwriter.
Very truly yours,
GABLES RESIDENTIAL TRUST
By: /s/ Marcus E. Bromley
---------------------
Marcus E. Bromley
Chief Executive Officer
Confirmed as of the date first
above mentioned:
PAINEWEBBER INCORPORATED
By: /s/ PAINEWEBBER INCORPORATED
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<PAGE> 20
EXHIBIT A
GABLES RESIDENTIAL TRUST
---------------------
Price Determination Agreement
September 11, 1996
PAINEWEBBER INCORPORATED
1285 Avenue of the Americas
New York, New York 10019
Dear Sirs:
Reference is made to the Underwriting Agreement, dated
concurrently herewith (the ``UNDERWRITING AGREEMENT''), between Gables
Residential Trust, a Maryland real estate investment trust (the ``COMPANY''),
and PaineWebber Incorporated (``PAINEWEBBER''). The Underwriting Agreement
provides for the purchase by PaineWebber from the Company, subject to the terms
and conditions set forth therein, of an aggregate of 1,500,000 shares (the
``FIRM SHARES'') of the Company's common shares of beneficial interest, par
value $.01 per share. This Agreement is the Price Determination Agreement
referred to in the Underwriting Agreement.
Pursuant to Section 1 of the Underwriting Agreement, the
undersigned agree with PaineWebber as follows:
1. The public offering price per share for the
Firm Shares shall be $23.625.
2. The purchase price per share for the Firm
Shares to be paid by PaineWebber shall be $23.625 representing an amount equal
to the public offering price set forth above, less $1.19 per share.
The Company represents and warrants to PaineWebber that the
representations and warranties of the Company set forth in Section 3 of the
Underwriting Agreement are accurate as though expressly made at and as of the
date hereof.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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If the foregoing is in accordance with your understanding of
the agreement among PaineWebber and the Company, please sign and return to the
Company a counterpart hereof, whereupon this instrument along with all
counterparts and together with the Underwriting Agreement shall be a binding
agreement between PaineWebber and the Company in accordance with its terms and
the terms of the Underwriting Agreement.
Very truly yours,
GABLES RESIDENTIAL TRUST
By: /s/ Marcus E. Bromley
---------------------
Marcus E. Bromley
Chief Executive Officer
Confirmed as of the date
first above mentioned:
PAINEWEBBER INCORPORATED
By: /s/ PAINEWEBBER INCORPORATED
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