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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
SEPTEMBER 16, 1997
GABLES RESIDENTIAL TRUST
(Exact name of Registrant as specified in its charter)
MARYLAND 1-12590 58-2077868
(State or other jurisdiction Commission File (I.R.S. Employer
of incorporation) Number) Identification No.)
2859 PACES FERRY ROAD, SUITE 1450
ATLANTA, GEORGIA 30339
(Address of principal executive offices and zip code)
Registrant's telephone number, including area code:
770-436-4600
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ITEM 5. OTHER EVENTS.
On September 16, 1997, Gables Residential Trust (the "Company") completed
the offering of 737,040 common shares of beneficial interest, par value $.01 per
share ("Common Shares"), at a price of $26.8125 per share, less an underwriting
discount of $1.340625 per share. The offering of the Common Shares was made
pursuant to a Prospectus Supplement dated September 11, 1997 relating to the
Prospectus dated August 11, 1997 filed with the Company's shelf registration
statement on Form S-3 (File No. 333-30093). It is anticipated that the Common
Shares will be deposited by Smith Barney Inc., the underwriter for the offering,
with a registered unit investment trust.
The net proceeds to the Company from the sale of the Common Shares was
approximately $18.7 million. The Company used the net proceeds to reduce
borrowings under its credit facilities.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(a) FINANCIAL STATEMENTS OF BUSINESS ACQUIRED:
Not Applicable
(b) PRO FORMA FINANCIAL INFORMATION:
Not Applicable
(c) EXHIBITS:
Exhibit No.
- ----------
1. Underwriting Agreement dated September 11, 1997.
5. Opinion as to the legality of the Common Shares.
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SIGNATURES
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.
Date: September 16, 1997 GABLES RESIDENTIAL TRUST
By: /s/ Marvin R. Banks, Jr.
----------------------------------
Marvin R. Banks, Jr.
Chief Financial Officer
and Treasurer
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737,040 Shares
GABLES RESIDENTIAL TRUST
Common Shares of Beneficial Interest
(par value $0.01 per share)
UNDERWRITING AGREEMENT
September 11, 1997
SMITH BARNEY INC.
388 Greenwich St., 33rd Floor
New York, New York 10013
Dear Sirs:
Gables Residential Trust, a Maryland real estate investment
trust (the "COMPANY"), proposes to sell an aggregate of 737,040 shares (the
"SHARES") of the Company's common shares of beneficial interest, $.01 par value
per share (the "COMMON SHARES"), to you (hereinafter the "UNDERWRITER"). The
Underwriter intends to deposit the Shares with the trustee of The Equity Focus
Trusts - REIT Portfolio Series 1997 (the "Trust"), a registered unit trust under
the Investment Company Act of 1940, as amended, to which Smith Barney Inc. acts
as sponsor and depositor, in exchange for units in the Trust.
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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1. 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 to be agreed upon by the Underwriter and the Company in
accordance with Section 1(b) hereof and set forth in the Price Determination
Agreement, the Shares.
(b) The purchase price per share for the 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 Shares shall
be made to the Underwriter against payment of the purchase price by wire
transfer of same day funds at the office of Smith Barney Inc., 388
Greenwich St., 33rd Floor, New York, New York 10013. 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").
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, 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, as the case may be.
The cost of original issue tax stamps, if any, in connection
with the issuance and delivery of the 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 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. 333-30093) 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
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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 sale and
distribution of the Common Shares has 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, 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
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 the 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 Prospectus constitute the only information relating to the 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.
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(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 the Second 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.
(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 (i) pursuant to the Company's dividend reinvestment plan, (ii) the
Company's Second Amended and Restated 1994 Share Option and Incentive Plan, as
amended, (iii) 65,049 units of limited partnership interest ("Units") in Gables
Realty Limited Partnership issued on August 21,
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1997 in connection with the Company's acquisition of Briarcliff North
Apartments, as well as approximately 29,820 additional Units to be issued in
connection with such acquisition and (iv) Units which may be issued in
connection with the Company's contract to acquire Rock Springs Estates,
Morningside Emory Villa and Morningside Emory Lofts.
(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 or
by way of grants of Common Shares or options to purchase Common Shares or the
exercise of such options, in any such case under the Company's Second Amended
and Restated 1994 Share Option and Incentive Plan, as amended, (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 thereunder in such a manner that,
individually or in the aggregate, would have a reasonable likelihood of causing
a material adverse effect on the business, properties, business prospects,
condition (financial or otherwise) or results of operations of the Company and
its subsidiaries, taken as a whole. The Company is not, nor at the Closing Date
will be, in violation of any provision of its Amended and Restated Declaration
of Trust or its Second 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
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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 Second Amended and Restated
By-laws of the Company or the charter documents of 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
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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, 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 Company has applied to have the Shares
duly authorized for listing 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
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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.
(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
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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 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, upon request for such item by the
Underwriter, furnish to the Underwriter 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, upon
request
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<PAGE> 11
for such item by the Underwriter, 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 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
counsel for the Underwriters in connection therewith 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.
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<PAGE> 12
(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, 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).
(n) 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 THE UNDERWRITER.
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 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
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<PAGE> 13
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.
(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 as if made at the Closing Date and, 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 shall have been duly performed,
fulfilled or complied with.
(e) The Underwriter shall have received one or
more opinions, dated the 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 B 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, 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,
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<PAGE> 14
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, 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 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.
(h) At the 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:
(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,
true and correct in all material respects.
(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) 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.
(j) 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.
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<PAGE> 15
(k) 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 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 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.
6. INDEMNIFICATION AND CONTRIBUTION.
(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
(including, but not limited to, any and all investigative, legal and other
expenses reasonably incurred in connection with, and any and all amounts paid in
settlement of, any action, suit or proceeding between any of the indemnified
parties and any indemnifying parties or between any indemnified party and any
third party, or otherwise, or any claim asserted), as and when incurred, to
which the Underwriter, or any such person 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 (i) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus, the
Registration Statement or the Prospectus or any amendment or supplement to the
Registration Statement or the Prospectus or in any documents filed under the
Exchange Act and deemed to be incorporated by reference into the Prospectus, or
in any application or other document executed by or on behalf of the Company or
based on written information furnished by or on behalf of the Company and filed
in any jurisdiction in either case in order to qualify the Shares under the
securities laws thereof or filed with the Commission, (ii) the omission or
alleged omission to state in such document a material fact required to be stated
in it or necessary to make the statements in it not misleading or (iii) any act
or failure to act or any alleged act or failure to act by the Underwriter in
connection with, or relating in any manner to, the Shares or the offering
contemplated hereby, and which is included as part of or referred to in any
loss, claim, liability, expense or damage arising out of or based upon matters
covered by clause (i) or (ii) above (provided that the Company shall not be
liable under this clause (iii) to the extent it is finally judicially determined
by a court of competent jurisdiction that such loss, claim, liability, expense
or damage resulted directly from any such acts or failures to act undertaken or
omitted to be taken by the Underwriter through its gross negligence or willful
misconduct); provided that the Company will not be liable to the extent that
such loss, claim, liability, expense or damage arises from the sale of the
Shares 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 such Underwriter expressly for inclusion
in the Registration Statement, any preliminary prospectus or the Prospectus.
This indemnity agreement will be in addition to any liability that the Company
might otherwise have.
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<PAGE> 16
(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 arise out of or are based on any untrue statement or omission or alleged
untrue statement or omission made in reliance on and in conformity with
information relating to any Underwriter furnished in writing to the Company by
the Underwriter expressly for use in the Registration Statement or the
Prospectus. This indemnity will be in addition to any liability that the
Underwriter might otherwise have; provided, however, that in no case shall the
Underwriter be liable or responsible for any amount in excess of the
underwriting discounts and commissions received by the Underwriter.
(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
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<PAGE> 17
such fees, disbursements and other charges will be reimbursed by the
indemnifying party promptly as they are incurred. An indemnifying party will not
be liable for any settlement of any action or claim effected without its written
consent (which consent will not be unreasonably withheld). No indemnifying party
shall, without the prior written consent of each indemnified party, settle or
compromise or consent to the entry of any judgment in any pending or threatened
claim, action or proceeding relating to the matters contemplated by this Section
6 (whether or not any indemnified party is a party thereto), unless such
settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising or that may arise out of such
claim, action or proceeding.
(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 any one or more of 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 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 Underwriter, 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 and
commissions received by it
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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).
(e) The indemnity and contribution agreements contained in
this Section 6 and the representations and warranties of the Company contained
in this Agreement shall remain operative and in full force and effect regardless
of (i) any investigation made by or on behalf of the Underwriter, (ii)
acceptance of the Shares and payment therefor or (iii) any termination of this
Agreement.
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.
8. TERMINATION. The obligations of the Underwriter under this
Agreement may be terminated at any time on or prior to the 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, 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 (x) commence or
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continue the offering of the units of the Trust to the public or (y) to enforce
contracts for the sale of the units of the Trust. Notice of such termination may
be given to the Company by telegram, telecopy or telephone and shall be
subsequently confirmed by letter.
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 Smith Barney Inc., 388
Greenwich Street, 33rd Floor, New York, New York 10013, 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.
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.
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Please confirm that the foregoing correctly sets forth the
agreement among the Company and the Underwriter.
Very truly yours,
GABLES RESIDENTIAL TRUST
By: /s/ Marvin R. Banks, Jr.
---------------------------
Marvin R. Banks, Jr.
Chief Financial Officer
Confirmed as of the date first
above mentioned:
SMITH BARNEY INC.
By: /s/ James C. Cowles
--------------------------------
James C. Cowles
Managing Director
S-1
<PAGE> 21
EXHIBIT A
GABLES RESIDENTIAL TRUST
---------------------
Price Determination Agreement
September 11, 1997
SMITH BARNEY INC.
388 Greenwich St., 33rd Floor
New York, New York 10013
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 Smith Barney
Inc. ("SMITH BARNEY"). The Underwriting Agreement provides for the purchase by
Smith Barney from the Company, subject to the terms and conditions set forth
therein, of an aggregate of 737,040 shares (the "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 Smith Barney as follows:
1. The purchase price per share for the Shares to be
paid by Smith Barney shall be $25.471875.
The Company represents and warrants to Smith Barney 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.
A-1
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If the foregoing is in accordance with your understanding of
the agreement between Smith Barney 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 Smith Barney and the Company in accordance with its terms and
the terms of the Underwriting Agreement.
Very truly yours,
GABLES RESIDENTIAL TRUST
By: /s/ Marvin R. Banks, Jr.
---------------------------------
Marvin R. Banks, Jr.
Chief Financial Officer
Confirmed as of the date
first above mentioned:
SMITH BARNEY INC.
By: /s/ James C. Cowles
----------------------
James C. Cowles
Managing Director
A-2
<PAGE> 23
EXHIBIT B
Form of Opinion of
Counsel to the Company
B-1
<PAGE> 24
EXHIBIT C
Subsidiaries of the Company
Gables GP, Inc.
Gables Realty Limited Partnership
Central Apartment Management, Inc.
East Apartment Management, Inc.
Alpha Insurance Agency, Inc.
Gables Central Construction, Inc.
Gables East Construction, Inc.
Gables - Tennessee Properties
Pin Oak Park Apartments
Pin Oak Green
Candlewood Gen Par, Inc.
Candlewood - Indian Creek Limited Partnership
GRT Villas Gen Par, Inc. (f.k.a. Candle Creek, Inc.)
GRT Villas Limited Partnership
C-1
<PAGE> 1
[GOODWIN, PROCTER & HOAR LLP LETTER HEAD]
EXHIBIT 5
September 16, 1997
Gables Residential Trust
2859 Paces Ferry Road
Overlook III, Suite 1450
Atlanta, Georgia 30339
Ladies and Gentlemen:
We have acted as counsel to Gables Residential Trust, a Maryland real
estate investment trust (the "Company"), in connection with the offer and sale
by the Company of up to 737,040 common shares of beneficial interest, par value
$.01 per share ("Common Shares"), of the Company (the "Shares"). This opinion is
being delivered in connection with (i) the Company's Registration Statement on
Form S-3 (No. 333-30093) (the "Registration Statement") relating to the
registration of the offering and sale under the Securities Act of 1933, as
amended, of up to $300,000,000 of securities of the Company, and (ii) a
prospectus supplement dated September 11, 1997 (the "Prospectus Supplement")
which supplements the prospectus included in such Registration Statement,
relating to the offering of the Shares by the Company. The Shares will be sold
to Smith Barney Inc. ("Smith Barney") pursuant to that certain Underwriting
Agreement dated September 11, 1997 between the Company and Smith Barney. It is
anticipated that the Shares will be deposited by Smith Barney with a registered
unit investment trust.
As the basis for the opinion hereinafter expressed, we have examined such
statutes, regulations, corporate records and documents, certificates of public
officials and other instruments as we have deemed necessary or advisable for the
purposes of this opinion. In such examination, we have assumed the authenticity
of all documents submitted to us as originals and the conformity with the
original documents of all documents submitted to us as copies.
Based on the foregoing and on such legal considerations as we deem
relevant, we are of the opinion that the Shares sold or to be sold by the
Company to Smith Barney as described in the Registration Statement and the
Prospectus Supplement have been duly authorized and have been, or upon delivery
of such Shares and payment therefor in accordance with the Underwriting
Agreement will be, validly issued, fully paid and non-assessable.
<PAGE> 2
GOODWIN, PROCTER & HOAR LLP
Gables Residential Trust
September 16, 1997
Page 2
We hereby consent to the use of this opinion as an exhibit to the Company's
Current Report on Form 8-K dated September 16, 1997.
Very truly yours,
/s/ Goodwin, Procter & Hoar LLP
---------------------------------------
GOODWIN, PROCTER & HOAR LLP
