KIMCO REALTY CORPORATION
(a Maryland corporation)
Common Stock, Warrants to Purchase Common Stock, Preferred Stock
and Depositary Shares
UNDERWRITING AGREEMENT
November 4, 1998
Jefferies & Company, Inc.
11100 Santa Monica Boulevard
Los Angeles, California 90025
Ladies and Gentlemen:
Kimco Realty Corporation, a Maryland corporation (the "Company"),
proposes to issue and sell shares of Common Stock, $.01 par value (the "Common
Stock"), or warrants to purchase a number of shares of Common Stock (the
"Common Stock Warrants"), or both, or shares of Preferred Stock, $1.00 par
value (the "Preferred Shares"), from time to time, in one or more offerings on
terms to be determined at the time of sale. The Preferred Shares may be
offered in the form of depositary shares (the "Depositary Shares") represented
by depositary receipts (the "Depositary Receipts"). The Common Stock Warrants
will be issued pursuant to a Common Stock Warrant Agreement (the "Warrant
Agreement") between the Company and a warrant agent (the "Warrant Agent").
Each series of Preferred Shares may vary as to the specific number of shares,
title, stated value, liquidation preference, issuance price, ranking, dividend
rate or rates (or method of calculation), dividend payment dates, any
redemption or sinking fund requirements, any conversion provisions and any
other variable terms as set forth in the applicable articles supplementary
(each, the "Articles Supplementary") relating to such Preferred Shares. As
used herein, "Securities" shall mean the Common Stock, the Common Stock
Warrants, the Preferred Shares, the Depositary Shares and the Depositary
Receipts; and "Warrant Securities" shall mean the Common Stock issuable upon
exercise of Common Stock Warrants. As used herein, "you" and "your," unless
the context otherwise requires, shall mean the parties to whom this Agreement
is addressed together with the other parties, if any, identified in the
applicable Terms Agreement (as hereinafter defined) as additional co-managers
with respect to Underwritten Securities (as hereinafter defined) purchased
pursuant thereto.
Whenever the Company determines to make an offering of Securities
through you or through an underwriting syndicate managed by you, the Company
will enter into an agreement (the "Terms Agreement") providing for the sale of
such Securities (the "Underwritten Securities") to, and the purchase and
offering thereof by, you and such other underwriters, if any, selected by you
as have authorized you to enter into such Terms Agreement on their behalf (the
"Underwriters," which term shall include you whether acting alone in the sale
of the Underwritten Securities or as a member of an underwriting syndicate and
any Underwriter substituted pursuant to Section 10 hereof). The Terms
Agreement relating to the offering of
Underwritten Securities shall specify the number of Underwritten Securities of
each class or series to be initially issued, including the number of Common
Stock Warrants, if any (the "Initial Underwritten Securities"), whether the
Initial Underwritten Securities shall be in the form of Depositary Shares and
the fractional amount of Preferred Shares represented by each Depositary
Share, the names of the Underwriters participating in such offering (subject
to substitution as provided in Section 10 hereof), the number of Initial
Underwritten Securities which each such Underwriter severally agrees to
purchase, the names of such of you or such other Underwriters acting as
co-managers, if any, in connection with such offering, the price at which the
Initial Underwritten Securities are to be purchased by the Underwriters from
the Company, any initial public offering price, the time, date and place of
delivery and payment, any delayed delivery arrangements and any other variable
terms of the Initial Underwritten Securities (including, but not limited to,
current ratings (in the case of Preferred Shares and Depositary Shares only),
designations, liquidation preferences, conversion provisions, redemption
provisions and sinking fund requirements and the terms of the Warrant
Securities and the terms, prices and dates upon which such Warrant Securities
may be purchased). In addition, each Terms Agreement shall specify whether the
Company has agreed to grant to the Underwriters an option to purchase
additional Underwritten Securities to cover over-allotments, if any, and the
number of Underwritten Securities subject to such option (the "Option
Securities"). As used herein, the term "Underwritten Securities" shall include
the Initial Underwritten Securities and all or any portion of the Option
Securities agreed to be purchased by the Underwriters as provided herein, if
any. The Terms Agreement, which shall be substantially in the form of Exhibit
A hereto, may take the form of an exchange of any standard form of written
telecommunication between you and the Company. Each offering of Underwritten
Securities through you or through an underwriting syndicate managed by you
will be governed by this Agreement, as supplemented by the applicable Terms
Agreement.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-61303) for
the registration of the Securities and Warrant Securities and certain of the
Company's debt securities, under the Securities Act of 1933, as amended (the
"1933 Act"), and the offering thereof from time to time in accordance with
Rule 415 of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations"). Such registration statement (including all
pre-effective amendments thereto) has been declared effective by the
Commission, and the Company has filed such post-effective amendments thereto
as may have been required prior to the execution of the applicable Terms
Agreement and each such post-effective amendment has been declared effective
by the Commission. Such registration statement (as so amended, if applicable),
including all information, if any, deemed to be a part thereof pursuant to
Rule 434 of the 1933 Act Regulations, is collectively referred to herein as
the "Registration Statement" and the final prospectus and the prospectus
supplement relating to the offering of the Underwritten Securities (the
"Prospectus Supplement"), in the form first used to confirm sales by the
Underwriters for use in connection with the offering of the Underwritten
Securities, are collectively referred to herein as the "Prospectus"; provided,
however, that all references to the "Registration Statement" and the
"Prospectus" shall be deemed to include all documents incorporated therein by
reference pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), prior to the execution of the applicable Terms Agreement. All
references in this Agreement to financial
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statements and schedules and other information which is "contained,"
"included" or "stated" in the Registration Statement or the Prospectus (and
all other references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information which is or is
deemed to be incorporated by reference in the Registration Statement or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement or the Prospectus
shall be deemed to mean and include the filing of any document under the 1934
Act which is or is deemed to be incorporated by reference in the Registration
Statement or the Prospectus, as the case may be. If the Company elects to rely
on Rule 434 under the 1933 Act Regulations, all references to the "Prospectus"
shall be deemed to include, without limitation, the final or preliminary
prospectus and the term sheet or abbreviated term sheet, taken together,
provided to the Underwriters by the Company in reliance on Rule 434 under the
1933 Act (the "Rule 434 Prospectus"). If the Company files a registration
statement with the Commission to register a portion of the Securities and
Warrant Securities and relies on Rule 462(b) for such registration statement
to become effective upon filing with the Commission (the "Rule 462
Registration Statement"), then any reference to "Registration Statement"
herein shall be deemed to be to both the registration statement referred to
above (No. 333-61303) and the Rule 462 Registration Statement.
Section 1. Representations and Warranties. (a) The Company represents
and warrants to you, as of the date hereof, and to you and each other
Underwriter named in the applicable Terms Agreement, as of the date thereof,
the Closing Time (as hereinafter defined) and each Date of Delivery, if any
(as hereinafter defined) (in each case, a "Representation Date"), as follows:
(i) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective and at each time
thereafter on which the Company filed an Annual Report on Form
10-K with the Commission, complied, and as of each
Representation Date will comply, in all material respects with
the requirements of the 1933 Act and 1933 Act Regulations; the
Registration Statement, at the time the Registration Statement
became effective and at each time thereafter on which the
Company filed an Annual Report on Form 10-K with the
Commission, did not, and at each time thereafter on which any
amendment to the Registration Statement becomes effective or
the Company files an Annual Report on Form 10-K with the
Commission and as of each Representation Date will not, contain
an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading; and the Prospectus,
as of the date hereof, does not, and as of each Representation
Date will not, include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that
the representations and warranties in this subsection shall not
apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity
with information furnished to the Company in writing by any
Underwriter through you expressly for use in the Registration
Statement or Prospectus.
(ii) The accountants who certified the financial statements,
financial statement schedules and historical summaries of
revenue and certain operating expenses for the properties
related thereto included or incorporated by reference in the
Registration
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Statement and the Prospectus are independent public accountants
as required by the 1933 Act and the 1933 Act Regulations.
(iii) The historical financial statements included or incorporated
by reference in the Registration Statement and the Prospectus
present fairly the financial position of the Company and its
consolidated subsidiaries as at the dates indicated and the
results of their operations for the periods specified; except
as may otherwise be stated in the Registration Statement and
the Prospectus, said financial statements have been prepared in
conformity with generally accepted accounting principles
applied on a consistent basis; and the financial statement
schedules and other financial information and data included or
incorporated by reference in the Registration Statement and the
Prospectus present fairly the information required to be stated
therein.
(iv) The historical summaries of revenue and certain operating
expenses included or incorporated by reference in the
Registration Statement and the Prospectus, if any, present
fairly the revenue and those operating expenses included in
such summaries for the periods specified in conformity with
generally accepted accounting principles; the pro forma
condensed consolidated financial statements included or
incorporated by reference in the Registration Statement and the
Prospectus, if any, present fairly the pro forma financial
position of the Company and its consolidated subsidiaries as at
the dates indicated and the pro forma results of their
operations for the periods specified; and the pro forma
condensed consolidated financial statements, if any, have been
prepared in conformity with generally accepted accounting
principles applied on a consistent basis, the assumptions on
which such pro forma financial statements have been prepared
are reasonable and are set forth in the notes thereto, such pro
forma financial statements have been prepared, and the pro
forma adjustments set forth therein have been applied, in
accordance with the applicable accounting requirements of the
1933 Act and the 1933 Act Regulations, and such pro forma
adjustments have been properly applied to the historical
amounts in the compilation of such statements.
(v) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as may
otherwise be stated therein or contemplated thereby, (A) there
has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of
business, (B) there have been no transactions or acquisitions
entered into by the Company or any of its subsidiaries other
than those arising in the ordinary course of business, which
are material with respect to the Company and its subsidiaries
considered as one enterprise, and (C) except for regular
quarterly dividends on the Company's common stock, or dividends
declared, paid or made in accordance with the terms of any
series of the Company's preferred stock, there has been no
dividend or distribution of any kind declared, paid or made by
the Company on any class of its capital stock.
(vi) The Company has been duly incorporated and is validly existing
as a corporation under the laws of Maryland and is in good
standing with the State
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Department of Assessments and Taxation of Maryland with
corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Prospectus; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify
would not have a material adverse effect on the condition,
financial or otherwise, or on the earnings, business affairs or
business prospects of the Company and its subsidiaries
considered as one enterprise; and the Articles Supplementary
relating to the Preferred Shares or Depositary Shares, if
applicable, will be in full force and effect as of each
Representation Date.
(vii) Each significant subsidiary (as defined in Rule 1-02 of
Regulation S-X promulgated under the 1933 Act) of the Company
(each, a "Significant Subsidiary") has been duly incorporated
and is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation, has
corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction
in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not have
a material adverse effect on the condition, financial or
otherwise, or on the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise; and all of the issued and outstanding capital stock
of each Significant Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and is owned
by the Company, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity, except for security interests
granted in respect of indebtedness of the Company or any of its
subsidiaries and referred to in the Prospectus.
(viii) The authorized, issued and outstanding stock of the Company
is as set forth in the Prospectus under "Capitalization"
(except for subsequent issuances, if any, pursuant to
reservations, agreements, employee benefit plans, dividend
reinvestment plans, employee and director stock option plans or
the exercise of convertible securities referred to in the
Prospectus); and the outstanding capital stock of the Company
has been duly authorized and validly issued and is fully paid
and non-assessable and is not subject to preemptive or other
similar rights.
(ix) The Underwritten Securities being sold pursuant to the
applicable Terms Agreement and, if applicable, the deposit of
the Preferred Shares in accordance with the provisions of a
Deposit Agreement (each, a "Deposit Agreement"), among the
Company, the financial institution named in the Deposit
Agreement (the "Depositary") and the holders of the Depositary
Receipts issued thereunder, have, as of each Representation
Date, been duly authorized by the Company and such Underwritten
Securities have been duly authorized for issuance and sale
pursuant to this Agreement and such Underwritten Securities,
when issued and delivered by the Company pursuant to this
Agreement against payment of the consideration set forth in the
applicable Terms Agreement or any Delayed Delivery Contract (as
hereinafter defined), will be validly issued, fully paid and
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non-assessable and will not be subject to preemptive or other
similar rights; the Preferred Shares, if applicable, conform to
the provisions of the Articles Supplementary; and the
Underwritten Securities being sold pursuant to the applicable
Terms Agreement conform in all material respects to all
statements relating thereto contained in the Prospectus.
(x) If applicable, the Common Stock Warrants have been duly
authorized and, when issued and delivered pursuant to this
Agreement and countersigned by the Warrant Agent as provided in
the Warrant Agreement, will have been duly executed,
countersigned, issued and delivered and will constitute valid
and legally binding obligations of the Company entitled to the
benefits provided by the Warrant Agreement under which they are
to be issued; the issuance of the Warrant Securities upon
exercise of the Common Stock Warrants will not be subject to
preemptive or other similar rights; and the Common Stock
Warrants conform in all material respects to all statements
relating thereto contained in the Prospectus.
(xi) If applicable, the shares of Common Stock issuable upon
conversion of any of the Preferred Shares or the Depositary
Shares, or the Warrant Securities, will have been duly and
validly authorized and reserved for issuance upon such
conversion or exercise by all necessary corporate action and
such shares, when issued upon such conversion or exercise, will
be duly and validly issued and will be fully paid and
non-assessable, and the issuance of such shares upon such
conversion or exercise will not be subject to preemptive or
other similar rights; the shares of Common Stock issuable upon
conversion of any of the Preferred Shares or the Depositary
Shares, or the Warrant Securities, conform in all material
respects to the descriptions thereof in the Prospectus.
(xii) The applicable Warrant Agreement, if any, and the applicable
Deposit Agreement, if any, will have been duly authorized,
executed and delivered by the Company prior to the issuance of
any applicable Underwritten Securities, and each constitutes a
valid and legally binding agreement of the Company enforceable
in accordance with its terms, except as enforcement thereof may
be limited by bankruptcy, insolvency or other similar laws
relating to or affecting creditors' rights generally and by
general equity principles (regardless of whether enforcement is
considered in a proceeding in equity or at law); and the
Warrant Agreement, if any, and the Deposit Agreement, if any,
each conforms in all material respects to all statements
relating thereto contained in the Prospectus.
(xiii) If applicable, upon execution and delivery of the Depositary
Receipts pursuant to the terms of the Deposit Agreement, the
persons in whose names such Depositary Receipts are registered
will be entitled to the rights specified therein and in the
Deposit Agreement, except as enforcement of such rights may be
limited by bankruptcy, insolvency or other similar laws
relating to or affecting creditors' rights generally and by
general equity principles (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(xiv) Neither the Company nor any of its subsidiaries is in
violation of its charter or by-laws or in default in the
performance or observance of any material
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obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Company
or any of its subsidiaries is subject, except for any such
violation or default that would not have a material adverse
effect on the condition, financial or otherwise, or on the
earnings, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise; and the
execution, delivery and performance of this Agreement, the
applicable Terms Agreement, the applicable Warrant Agreement,
if any, or the applicable Deposit Agreement, if any, and the
consummation of the transactions contemplated herein and
therein and compliance by the Company with its obligations
hereunder and thereunder have been duly authorized by all
necessary corporate action, and will not conflict with or
constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of its
subsidiaries pursuant to any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the
Company or any of its subsidiaries is a party or by which it or
any of them may be bound, or to which any of the property or
assets of the Company or any of its subsidiaries is subject,
nor will such action result in any violation of the charter or
by-laws of the Company or any applicable law, administrative
regulation or administrative or court order or decree.
(xv) The Company has operated and intends to continue to operate in
such a manner as to qualify to be taxed as a "real estate
investment trust" under the Internal Revenue Code of 1986, as
amended (the "Code"), for the taxable year in which sales of
the Underwritten Securities are to occur.
(xvi) Neither the Company nor any of its subsidiaries is an
"investment company" within the meaning of the Investment
Company Act of 1940, as amended (the "1940 Act").
(xvii) There is no action, suit or proceeding before or by any court
or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company, threatened
against or affecting the Company or any of its subsidiaries
which is required to be disclosed in the Prospectus (other than
as disclosed therein), or which might result in any material
adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, or
which might materially and adversely affect the properties or
assets thereof or which might materially and adversely affect
the consummation of this Agreement, the applicable Terms
Agreement, the applicable Warrant Agreement, if any, or the
applicable Deposit Agreement, if any, or the transactions
contemplated herein or therein; all pending legal or
governmental proceedings to which the Company or any of its
subsidiaries is a party or of which any of its property or
assets is the subject which are not described in the
Prospectus, including ordinary routine litigation incidental to
the business, are, considered in the aggregate, not material;
and there are no contracts or documents of the Company or any
of its
7
subsidiaries which are required to be filed as exhibits to the
Registration Statement by the 1933 Act or by the 1933 Act
Regulations which have not been so filed.
(xviii) Neither the Company nor any of its subsidiaries is required
to own or possess any trademarks, service marks, trade names or
copyrights in order to conduct the business now operated by it,
other than those the failure to possess or own would not have a
material adverse effect on the condition, financial or
otherwise, or on the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise.
(xix) No authorization, approval or consent of any court or
governmental authority or agency is required that has not been
obtained in connection with the consummation by the Company of
the transactions contemplated by this Agreement, the applicable
Terms Agreement, any Warrant Agreement or any Deposit
Agreement, except such as may be required under the 1933 Act or
the 1933 Act Regulations, state securities laws or real estate
syndication laws.
(xx) The Company and its subsidiaries possess such certificates,
authorities or permits issued by the appropriate state, federal
or foreign regulatory agencies or bodies necessary to conduct
the business now operated by them, other than those the failure
to possess or own would not have a material adverse effect on
the condition, financial or otherwise, or on the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, and neither the
Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any
such certificate, authority or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would materially and adversely affect the condition,
financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries
considered as one enterprise.
(xxi) The Company has full corporate power and authority to enter
into this Agreement, the applicable Terms Agreement and the
Delayed Delivery Contracts, if any, and this Agreement has
been, and as of each Representation Date, the applicable Terms
Agreement and the Delayed Delivery Contracts, if any, will have
been, duly authorized, executed and delivered by the Company.
(xxii) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were or hereafter
are filed with the Commission, complied and will comply in all
material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission under the 1934 Act (the
"1934 Act Regulations"), and, when read together with the other
information in the Prospectus, at the time the Registration
Statement became effective and as of the applicable
Representation Date or during the period specified in Section
3(f), did not and will not include an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading.
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(xxiii) Except as otherwise disclosed in the Prospectus and except
as would not have a material adverse effect on the condition,
financial or otherwise, or on the earnings, business affairs or
business prospects of the Company and its subsidiaries
considered as one enterprise: (i) all properties and assets
described in the Prospectus are owned with good and marketable
title by the Company, its subsidiaries and/or a joint venture
or partnership in which any such party is a participant (a
"Related Entity"); (ii) all of the leases under which any of
the Company, its subsidiaries or, to the knowledge of the
Company, Related Entities holds or uses real properties or
assets as a lessee are in full force and effect, and neither
the Company, nor any of its subsidiaries or, to the knowledge
of the Company, Related Entities is in material default in
respect of any of the terms or provisions of any of such leases
and no claim has been asserted by anyone adverse to any such
party's rights as lessee under any of such leases, or affecting
or questioning any such party's right to the continued
possession or use of the leased property or assets under any
such leases; (iii) all liens, charges, encumbrances, claims or
restrictions on or affecting the properties and assets of any
of the Company, its subsidiaries or Related Entities which are
required to be disclosed in the Prospectus are disclosed
therein; (iv) neither the Company, nor any of its subsidiaries
or, to the knowledge of the Company, Related Entities nor any
lessee of any portion of any such party's properties is in
default under any of the leases pursuant to which any of the
Company, its subsidiaries or, to the knowledge of the Company,
Related Entities leases its properties and neither the Company,
nor any of its subsidiaries or Related Entities knows of any
event which, but for the passage of time or the giving of
notice, or both, would constitute a default under any of such
leases; (v) no tenant under any of the leases pursuant to which
any of the Company, or its subsidiaries or, to the knowledge of
the Company, Related Entities leases its properties has an
option or right of first refusal to purchase the premises
demised under such lease; (vi) each of the properties of any of
the Company or, to the knowledge of the Company, its
subsidiaries or Related Entities complies with all applicable
codes and zoning laws and regulations; and (vii) neither the
Company nor any of its subsidiaries has knowledge of any
pending or threatened condemnation, zoning change or other
proceeding or action that will in any manner affect the size
of, use of, improvements on, construction on, or access to the
properties of any of the Company, or its subsidiaries or
Related Entities.
(xxiv) Title insurance in favor of the mortgagee or the Company, its
subsidiaries and/or their Related Entities is maintained with
respect to each shopping center property owned by any such
entity in an amount at least equal to (a) the cost of
acquisition of such property or (b) the cost of construction of
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 on the earnings, business
affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(xxv) The mortgages and deeds of trust encumbering the properties
and assets described in the Prospectus are not convertible nor
does any of the Company, or its subsidiaries hold a
participating interest therein.
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(xxvi) Each of the partnership and joint venture agreements to which
the Company or any of its subsidiaries is a party, and which
relates to real property described in the Prospectus, has been
duly authorized, executed and delivered by such applicable
party and constitutes the valid agreement thereof, enforceable
in accordance with its terms, except as limited by (a) the
effect of bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to or
affecting the rights or remedies of creditors or (b) the effect
of general principles of equity, whether enforcement is
considered in a proceeding in equity or at law, and the
discretion of the court before which any proceeding therefor
may be brought, and the execution, delivery and performance of
any of such agreements did not, at the time of execution and
delivery, and does not constitute a breach of, or default
under, the charter or by-laws of such party or any material
contract, lease or other instrument to which such party is a
party or by which its properties may be bound or any law,
administrative regulation or administrative or court order or
decree.
(xxvii) None of the Company, or any of its subsidiaries has any
knowledge of (a) the unlawful presence of any hazardous
substances, hazardous materials, toxic substances or waste
materials (collectively, "Hazardous Materials") on any of the
properties owned by it or the Related Entities, or (b) 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 on the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise; and in connection with the construction on or
operation and use of the properties owned by the Company, its
subsidiaries and Related-Entities, each of the Company, and its
subsidiaries represents that, as of each Representation Date,
it has no knowledge of any material failure to comply with all
applicable local, state and federal environmental laws,
regulations, ordinances and administrative and judicial orders
relating to the generation, recycling, reuse, sale, storage,
handling, transport and disposal of any Hazardous Materials.
(b) Any certificate signed by any officer of the Company and
delivered to you or to counsel for the Underwriters in connection with the
offering of the Underwritten Securities shall be deemed a representation and
warranty by the Company to each Underwriter participating in such offering as
to the matters covered thereby on the date of such certificate and, unless
subsequently amended or supplemented, at each Representation Date subsequent
thereto.
Section 2. Purchase and Sale. (a) The several commitments of the
Underwriters to purchase the Underwritten Securities pursuant to the
applicable Terms Agreement shall be deemed to have been made on the basis of
the representations and warranties herein contained and shall be subject to
the terms and conditions herein set forth.
(b) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company may grant, if so provided in the applicable Terms Agreement relating
to the Initial Underwritten Securities, an option to the Underwriters named in
such Terms Agreement, severally and not jointly, to purchase up to the
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number of Option Securities set forth therein at a price per Option Security
equal to the price per Initial Underwritten Security, less an amount equal to
any dividends declared by the Company and paid or payable on the Initial
Underwritten Securities but not on the Option Underwritten Securities. Such
option, if granted, will expire 30 days or such lesser number of days as may
be specified in the applicable Terms Agreement after the Representation Date
relating to the Initial Underwritten Securities, and may be exercised in whole
or in part from time to time only for the purpose of covering over-allotments
which may be made in connection with the offering and distribution of the
Initial Underwritten Securities upon notice by you to the Company setting
forth the number of Option Securities as to which the several Underwriters are
then exercising the option and the time, date and place of payment and
delivery for such Option Securities. Any such time and date of delivery (a
"Date of Delivery") shall be determined by you, but shall not be later than
three full business days and not be earlier than two full business days after
the exercise of said option, unless otherwise agreed upon by you and the
Company. If the option is exercised as to all or any portion of the Option
Securities, each of the Underwriters, acting severally and not jointly, will
purchase that proportion of the total number of Option Securities then being
purchased which the number of Initial Underwritten Securities each such
Underwriter has severally agreed to purchase as set forth in the applicable
Terms Agreement bears to the total number of Initial Underwritten Securities
(except as otherwise provided in the applicable Terms Agreement), subject to
such adjustments as you in your discretion shall make to eliminate any sales
or purchases of fractional Initial Underwritten Securities.
(c) Payment of the purchase price for, and delivery of, the
Underwritten Securities to be purchased by the Underwriters shall be made at
the office of Brown & Wood LLP, 58th Floor, One World Trade Center, New York,
New York 10048-0557, or at such other place as shall be agreed upon by you and
the Company, at 9:00 A.M., New York City time, on the third business day
(unless postponed in accordance with the provisions of Section 10) following
the date of the applicable Terms Agreement or, if pricing takes place after
4:30 P.M., New York City time, on the date of the applicable Terms Agreement,
on the fourth business day (unless postponed in accordance with the provisions
of Section 10) following the date of the applicable Terms Agreement or at such
other time as shall be agreed upon by you and the Company (each such time and
date being referred to as a "Closing Time"). In addition, in the event that
any or all of the Option Securities are purchased by the Underwriters, payment
of the purchase price for, and delivery of certificates representing, such
Option Securities, shall be made at the above-mentioned offices of Brown &
Wood LLP, or at such other place as shall be agreed upon by you and the
Company on each Date of Delivery as specified in the notice from you to the
Company. Unless otherwise specified in the applicable Terms Agreement, payment
shall be made to the Company by wire transfer or certified or official bank
check or checks in Federal or similar same-day funds payable to the order of
the Company against delivery to you for the respective accounts of the
Underwriters for the Underwritten Securities to be purchased by them. The
Underwritten Securities or, if applicable, Depositary Receipts evidencing the
Depositary Shares, shall be in such authorized denominations and registered in
such names as you may request in writing at least one business day prior to
the applicable Closing Time or Date of Delivery, as the case may be. The
Underwritten Securities, which may be in temporary form, will be made
available for examination and packaging by you on or before the first business
day prior to the Closing Time or Date of Delivery, as the case may be.
12
If authorized by the applicable Terms Agreement, the Underwriters
named therein may solicit offers to purchase Underwritten Securities from the
Company pursuant to delayed delivery contracts ("Delayed Delivery Contracts")
substantially in the form of Exhibit B hereto with such changes therein as the
Company may approve. As compensation for arranging Delayed Delivery Contracts,
the Company will pay to you at Closing Time, for the respective accounts of
the Underwriters, a fee specified in the applicable Terms Agreement for each
of the Underwritten Securities for which Delayed Delivery Contracts are made
at the Closing Time as is specified in the applicable Terms Agreement. Any
Delayed Delivery Contracts are to be with institutional investors of the types
described in the Prospectus. At the Closing Time, the Company will enter into
Delayed Delivery Contracts (for not less than the minimum number of
Underwritten Securities per Delayed Delivery Contract specified in the
applicable Terms Agreement) with all purchasers proposed by the Underwriters
and previously approved by the Company as provided below, but not for an
aggregate number of Underwritten Securities in excess of that specified in the
applicable Terms Agreement. The Underwriters will not have any responsibility
for the validity or performance of Delayed Delivery Contracts.
You shall submit to the Company, at least two business days prior to
the Closing Time, the names of any institutional investors with which it is
proposed that the Company will enter into Delayed Delivery Contracts and the
number of Underwritten Securities to be purchased by each of them, and the
Company will advise you, at least two business days prior to the Closing Time,
of the names of the institutions with which the making of Delayed Delivery
Contracts is approved by the Company and the number of Underwritten Securities
to be covered by each such Delayed Delivery Contract.
The number of Underwritten Securities agreed to be purchased by the
several Underwriters pursuant to the applicable Terms Agreement shall be
reduced by the number of Underwritten Securities covered by Delayed Delivery
Contracts, as to each Underwriter as set forth in a written notice delivered
by you to the Company; provided, however, that the total number of
Underwritten Securities to be purchased by all Underwriters shall be the total
number of Underwritten Securities covered by the applicable Terms Agreement,
less the number of Underwritten Securities covered by Delayed Delivery
Contracts.
Section 3. Covenants of the Company. The Company covenants with you,
and with each Underwriter participating in the offering of Underwritten
Securities, as follows:
(a) If the Company does not elect to rely on Rule 434 under the 1933
Act Regulations, immediately following the execution of the applicable Terms
Agreement, the Company will prepare a Prospectus Supplement setting forth the
number of Underwritten Securities covered thereby and their terms not
otherwise specified in the Prospectus pursuant to which the Underwritten
Securities are being issued, the names of the Underwriters participating in
the offering and the number of Underwritten Securities which each severally
has agreed to purchase, the names of the Underwriters acting as co-managers in
connection with the offering, the price at which the Underwritten Securities
are to be purchased by the Underwriters from the Company, the initial public
offering price, if any, the selling concession and reallowance, if any, any
delayed delivery arrangements, and such other information as you and the
Company deem appropriate in connection with the offering of the Underwritten
Securities; and the Company will
12
promptly transmit copies of the Prospectus Supplement to the Commission for
filing pursuant to Rule 424(b) of the 1933 Act Regulations and will furnish to
the Underwriters named therein as many copies of the Prospectus (including
such Prospectus Supplement) as you shall reasonably request. If the Company
elects to rely on Rule 434 under the 1933 Act Regulations, immediately
following the execution of the applicable Terms Agreement, the Company will
prepare an abbreviated term sheet that complies with the requirements of Rule
434 under the 1933 Act Regulations and will provide the Underwriters with
copies of the form of Rule 434 Prospectus, in such number as you shall
reasonably request, and promptly file or transmit for filing with the
Commission the form of Prospectus complying with Rule 434(c)(2) of the 1933
Act Regulations in accordance with Rule 424(b) of the 1933 Act Regulations.
(b) The Company will notify you immediately, and confirm such notice
in writing, of (i) the effectiveness of any amendment to the Registration
Statement, (ii) the transmittal to the Commission for filing of any Prospectus
Supplement or other supplement or amendment to the Prospectus or any document
to be filed pursuant to the 1934 Act, (iii) the receipt of any comments from
the Commission, (iv) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (v) the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose; and the Company will make
every reasonable effort to prevent the issuance of any stop order and, if any
stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(c) At any time when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities, the Company will give you notice of its intention to file or
prepare any amendment to the Registration Statement or any amendment or
supplement to the Prospectus, whether pursuant to the 1933 Act, 1934 Act or
otherwise (including any revised prospectus which the Company proposes for use
by the Underwriters in connection with an offering of Underwritten Securities
which differs from the Prospectus on file at the Commission at the time the
Registration Statement first becomes effective, whether or not such revised
prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act
Regulations, or any abbreviated term sheet prepared in reliance on Rule 434 of
the 1933 Act Regulations), and will furnish you with copies of any such
amendment or supplement or other documents proposed to be filed or used a
reasonable amount of time prior to such proposed filing or use, as the case
may be, and will not file any such amendment or supplement or other documents
in a form to which you or counsel for the Underwriters shall reasonably
object.
(d) The Company will deliver to each Underwriter as many signed and
conformed copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) as such Underwriter reasonably requests.
(e) The Company will furnish to each Underwriter, from time to time
during the period when the Prospectus is required to be delivered under the
1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities, such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request for the purposes
13
contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the
1934 Act Regulations.
(f) If at any time when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act in connection with sales of the
Underwritten Securities any event shall occur or condition exist as a result
of which it is necessary, in the opinion of counsel for the Underwriters or
counsel for the Company, to amend or supplement the Prospectus in order that
the Prospectus will not include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein
not misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of
either such counsel, at any such time to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the
1933 Act or the 1933 Act Regulations, then the Company will promptly prepare
and file with the Commission such amendment or supplement, whether by filing
documents pursuant to the 1933 Act, the 1934 Act or otherwise, as may be
necessary to correct such untrue statement or omission or to make the
Registration Statement and Prospectus comply with such requirements.
(g) The Company will endeavor, in cooperation with the Underwriters,
to qualify the Underwritten Securities, the Warrant Securities, if any, and
the shares of Common Stock issuable upon conversion of the Preferred Shares or
the Depositary Shares, if any, for offering and sale under the applicable
securities laws and real estate syndication laws of such states and other
jurisdictions of the United States as you may designate. In each jurisdiction
in which the Underwritten Securities, the Warrant Securities, if any, and the
shares of Common Stock issuable upon conversion of the Preferred Shares or the
Depositary Shares, if any, have been so qualified, the Company will file such
statements and reports as may be required by the laws of such jurisdiction to
continue such qualification in effect for so long as may be required for the
distribution of the Underwritten Securities and the Warrant Securities, if
any; provided, however, that the Company shall not be obligated to qualify as
a foreign corporation in any jurisdiction where it is not so qualified.
(h) With respect to each sale of Underwritten Securities, the Company
will make generally available to its security holders as soon as practicable,
but not later than 90 days after the close of the period covered thereby, an
earnings statement (in form complying with the provisions of Rule 158 of the
1933 Act Regulations) covering a twelve-month period beginning not later than
the first day of the Company's fiscal quarter next following the "effective
date" (as defined in such Rule 158) of the Registration Statement.
(i) The Company will use its best efforts to meet the requirements to
qualify as a "real estate investment trust" under the Code for the taxable
year in which sales of the Underwritten Securities are to occur.
(j) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act or the 1934 Act in connection with sales of
the Underwritten Securities, will file all documents required to be filed with
the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the
time period prescribed by the 1934 Act and the 1934 Act Regulations.
14
(k) If the Preferred Shares or Depositary Shares are convertible into
shares of Common Stock or if Common Stock Warrants are issued, the Company
will reserve and keep available at all times, free of preemptive or other
similar rights, a sufficient number of shares of Common Stock or Preferred
Shares, as the case may be, for the purpose of enabling the Company to satisfy
any obligations to issue such shares upon conversion of the Preferred Shares
or the Depositary Shares, as the case may be, or upon exercise of the Common
Stock Warrants.
(l) If the Underwritten Securities are Common Stock, the Company will
use its best efforts to list such shares of Common Stock on the New York Stock
Exchange or such other national securities exchange on which the Company's
shares of Common Stock are then listed. If the Preferred Shares or Depositary
Shares are convertible into shares of Common Stock, the Company will use its
best efforts to list the shares of Common Stock issuable upon conversion of
the Preferred Shares or Depositary Shares on the New York Stock Exchange or
such other national securities exchange on which the Company's shares of
Common Stock are then listed.
Section 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement or the
applicable Terms Agreement, including (i) the printing and filing of the
Registration Statement as originally filed and of each amendment thereto, (ii)
the printing and filing of this Agreement and the applicable Terms Agreement,
(iii) the preparation, issuance and delivery of the Underwritten Securities to
the Underwriters and the Warrant Securities, if any, (iv) the fees and
disbursements of the Company's counsel and accountants, (v) the qualification
of the Underwritten Securities, the Warrant Securities, if any, and the shares
of Common Stock issuable upon conversion of the Preferred Shares or the
Depositary Shares, if any, under securities laws and real estate syndication
laws in accordance with the provisions of Section 3(g), including filing fees
and the fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky Survey, (vi)
the printing and delivery to the Underwriters of copies of the Registration
Statement as originally filed and of each amendment thereto, and of the
Prospectus and any amendments or supplements thereto, including each
abbreviated term sheet delivered by the Company pursuant to Rule 434 of the
1933 Act Regulations, (vii) the printing and delivery to the Underwriters of
copies of the applicable Deposit Agreement, if any, and the applicable Warrant
Agreement, if any, (viii) any fees charged by nationally recognized
statistical rating organizations for the rating of the Securities, (ix) the
fees and expenses, if any, incurred with respect to the listing of the
Underwritten Securities, the Warrant Securities, if any, or the shares of
Common Stock issuable upon conversion of the Preferred Shares or the
Depositary Shares, if any, on any national securities exchange, and (x) the
fees and expenses, if any, incurred with respect to any filing with the
National Association of Securities Dealers, Inc.
If the applicable Terms Agreement is terminated by you in accordance
with the provisions of Section 5 or Section 9(b)(i), the Company shall
reimburse the Underwriters named in such Terms Agreement for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
Section 5. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase Underwritten Securities pursuant
to the applicable Terms Agreement
15
are subject to the accuracy of the representations and warranties of the
Company herein contained, to the accuracy of the statements of the Company's
officers made in any certificate pursuant to the provisions hereof, to the
performance by the Company of all of its covenants and other obligations
hereunder, and to the following further conditions:
(a) At Closing Time, (i) no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, (ii) if
Preferred Shares or Depositary Shares are being offered, the rating assigned
by any nationally recognized statistical rating organization to any preferred
stock of the Company as of the date of the applicable Terms Agreement shall
not have been lowered since such date nor shall any such rating organization
have publicly announced that it has placed any preferred stock of the Company
on what is commonly termed a "watch list" for possible downgrading, (iii)
there shall not have come to your attention any facts that would cause you to
believe that the Prospectus, together with the applicable Prospectus
Supplement, at the time it was required to be delivered to purchasers of the
Underwritten Securities, included an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in light of the circumstances existing at such time, not misleading
and (iv) the Underwritten Securities or the Common Stock issuable upon
conversion thereof, as applicable in accordance with Section 3(l) hereof,
shall have been duly listed in accordance with such Section 3(l).
(b) At Closing Time, you shall have received:
(1) The favorable opinion, dated as of Closing Time, of Latham
& Watkins, counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation under the laws of the State of
Maryland and is in good standing with the State Department of
Assessments and Taxation of Maryland.
(ii) The Company has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus.
(iii) The Company is duly qualified as a foreign
corporation to transact business and is in good standing in
each jurisdiction in which it owns or leases real property,
except where the failure to so qualify would not have a
material adverse effect on the condition, financial or
otherwise, or on the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise.
(iv) The authorized, issued and outstanding stock of the
Company is as set forth in the Prospectus under
"Capitalization" (except for subsequent issuances, if any,
pursuant to reservations, agreements, employee benefit plans,
dividend reinvestment plans or employee and director stock
option plans referred to in the Prospectus); and the
outstanding capital stock of the Company has been
16
duly authorized, validly issued, fully paid and non-assessable
and is not subject to preemptive or other similar rights
arising by operation of law or, to the best of such counsel's
knowledge otherwise.
(v) The Underwritten Securities being-sold pursuant to the
applicable Terms Agreement and, if applicable, the deposit of
the Preferred Shares in accordance with the provisions of a
Deposit Agreement, have been duly and validly authorized by all
necessary corporate action and such Underwritten Securities
have been duly authorized for issuance and sale pursuant to
this Agreement and such Underwritten Securities, when issued
and delivered by the Company pursuant to this Agreement against
payment of the consideration set forth in the applicable Terms
Agreement or any Delayed Delivery Contract, will be validly
issued, fully paid and non-assessable and will not be subject
to preemptive or other similar rights arising by operation of
law or, to the best of such counsel's knowledge, otherwise; and
the Preferred Shares, if applicable, conform to the provisions
of the Articles Supplementary.
(vi) If applicable, the Common Stock Warrants have been
duly authorized and, when issued and delivered pursuant to this
Agreement and countersigned by the Warrant Agent as provided in
the Warrant Agreement, will have been duly executed,
countersigned, issued and delivered and will constitute valid
and legally binding obligations of the Company entitled to the
benefits provided by the Warrant Agreement under which they are
to be issued.
(vii) If applicable, the shares of Common Stock issuable
upon conversion of any of the Preferred Shares or Depositary
Shares, or the exercise of Warrant Securities, have been duly
and validly authorized and reserved for issuance upon such
conversion or exercise by all necessary corporate action on the
part of the Company and such shares, when issued upon such
conversion or exercise in accordance with the charter of the
Company, the Deposit Agreement, the Terms Agreement, the
Delayed Delivery Contract or the Warrant Agreement, as the case
may be, will be duly and validly issued and will be fully paid
and non-assessable, and the issuance of such shares upon such
conversion or exercise will not be subject to preemptive or
other similar rights arising by operation of law or, to the
best of such counsel's knowledge, otherwise.
(viii) The applicable Warrant Agreement, if any, and the
applicable Deposit Agreement, if any, have been duly
authorized, executed and delivered by the Company, and
(assuming due authorization, execution and delivery by the
Warrant Agent in the case of the Warrant Agreement, and the
Depositary, in the case of the Deposit Agreement) each
constitutes a valid and legally binding agreement of the
Company enforceable in accordance with its terms; and the
Warrant Agreement, if any, and the Deposit Agreement, if any,
each conforms in all material respects to all statements
relating thereto contained in the Prospectus.
17
(ix) If applicable, upon execution and delivery of the
Depositary Receipts pursuant to the terms of the Deposit
Agreement, the persons in whose names such Depositary Receipts
are registered will be entitled to the rights specified therein
and in the Deposit Agreement.
(x) Each of this Agreement, the applicable Terms Agreement
and the Delayed Delivery Contracts, if any, has been duly
authorized, executed and delivered by the Company.
(xi) The Registration Statement is effective under the
1933 Act and, to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission.
(xii) The Registration Statement and the Prospectus,
excluding the documents incorporated by reference therein, as
of their respective effective or issue dates, comply as to form
in all material respects with the requirements for registration
statements on Form S-3 under the 1933 Act and the 1933 Act
Regulations; it being understood, however, that no opinion need
be rendered with respect to the financial statements, schedules
and other financial and statistical data included or
incorporated by reference in the Registration Statement or the
Prospectus; it being understood, further, that in passing upon
the compliance as to form of the Registration Statement and the
Prospectus, such counsel may assume that the statements made
therein are correct and complete. If applicable, the Rule 434
Prospectus conforms in all material respects to the
requirements of Rule 434 under the 1933 Act Regulations.
(xiii) Each document filed pursuant to the 1934 Act and
incorporated or deemed to be incorporated by reference in the
Prospectus (other than the financial statements, schedules and
other financial and statistical data included therein, as to
which no opinion need be rendered) complied when so filed as to
form in all material respects with the 1934 Act and the 1934
Act Regulations. In passing upon compliance as to form of such
documents, such counsel may assume that the statements made
therein are correct and complete.
(xiv) If applicable, the relative rights preferences,
interests and powers of the Preferred Shares or Depositary
Shares, as the case may be, are as set forth in the Articles
Supplementary relating thereto, and all such provisions are
valid under the Maryland General Corporation Law ("MGCL"); and,
as applicable, the form of certificate used to evidence
Preferred Shares being represented by the Depositary Shares and
the form of certificate used to evidence the related Depositary
Receipts are in due and proper form under the MGCL and comply
with all applicable statutory requirements under the MGCL.
(xv) The Underwritten Securities, the Warrant Securities,
and the shares of Common Stock issuable upon conversion of the
Preferred Shares or Depositary
18
Shares, if applicable, conform in all material respects to the
statements relating thereto contained in the Prospectus.
(xvi) No authorization, approval or consent of any court
or governmental authority or agency is required that has not
been obtained in connection with the consummation by the
Company of the transactions contemplated by this Agreement, the
applicable Terms Agreement, the applicable Deposit Agreement,
if any, or the applicable Warrant Agreement, if any, except
such as may be required under the 1933 Act, 1934 Act and state
securities laws or real estate syndication laws.
(xvii) Neither the Company nor any of its subsidiaries is
required to be registered under the 1940 Act.
(xviii) Commencing with the Company's taxable year
beginning January 1, 1992, the Company has been organized in
conformity with the requirements for qualification as a "real
estate investment trust," and its method of operation will
enable it to meet the requirements for qualification and
taxation as a "real estate investment trust" under the Code,
provided that such counsel's opinion as to this matter shall be
conditioned upon certain representations as to factual matters
made by the Company to such counsel as described therein.
(xix) The statements set forth (a) in the Prospectus under
the caption "Certain Federal Income Tax Considerations to the
Company of its REIT Election" and (b) in the Prospectus
Supplement under the caption "Certain Federal Income Tax
Considerations," to the extent such statements constitute
matters of law, summaries of legal matters, or legal
conclusions, have been reviewed by them and are accurate in all
material respects.
The opinions rendered in (vi), (viii) and (ix) of subsection
(b)(1) are subject to the following exceptions, limitations and
qualifications: (i) the effect of bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to or affecting the rights and remedies of
creditors; and (ii) the effect of general principles of equity,
whether enforcement is considered in a proceeding in equity or at
law, and the discretion of the court before which any proceeding
therefor may be brought.
(2) The favorable opinion, dated as of Closing Time, of Robert
P. Schulman, Esq., counsel for the Company, or other counsel
satisfactory to the Underwriters, in form and substance satisfactory
to counsel for the Underwriters, to the effect that:
(i) To the best of his knowledge and information, there
are no legal or governmental proceedings pending or threatened
which are required to be disclosed in the Prospectus, other
than those disclosed therein, and all pending legal or
governmental proceedings to which the Company or any of its
subsidiaries is a party or of which any of the property of the
Company or its subsidiaries is the subject which are not
described in the Prospectus, including
19
ordinary routine litigation incidental to the business, are,
considered in the aggregate, not material.
(ii) To the best of his knowledge and information, there
are no contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments required to be described or
referred to in the Registration Statement or the Prospectus or
to be filed as exhibits to the Registration Statement other
than those described or referred to therein or filed as
exhibits thereto, the descriptions thereof or references
thereto are correct, and, to the best of his knowledge and
information, no default exists in the due performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage
(except as otherwise described in the Prospectus), loan
agreement, note, lease or other instrument so described,
referred to or filed which would have a material adverse effect
on the condition, financial or otherwise, or on the earnings,
business or business prospects of the Company and its
subsidiaries considered as one enterprise.
(iii) To the best of his knowledge and information, the
execution and delivery of this Agreement, the applicable Terms
Agreement, the applicable Deposit Agreement, if any, or the
applicable Warrant Agreement, if any, and the consummation of
the transactions contemplated herein and therein and compliance
by the Company with its obligations hereunder and thereunder
will not conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any of its subsidiaries is a
party or by which it or any of them may be bound or to which
any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in
violation of the provisions of the charter or by-laws of the
Company or any applicable law, administrative regulation or
administrative or court order or decree.
(iv) Each of the partnership and joint venture agreements
to which the Company or any of its subsidiaries is a party, and
which relates to real property described in the Prospectus, has
been duly authorized, executed and delivered by such applicable
party and constitutes the valid agreement thereof, enforceable
in accordance with its terms, except as limited by bankruptcy
and general equitable principles and the execution, delivery
and performance of any of such agreements did not, at the time
of execution and delivery, and does not constitute a breach of,
or default under, the charter or by-laws of such party or any
material contract, lease or other instrument to which such
party is a party or by which its properties may be bound or any
law, administrative regulation or administrative or court order
or decree.
(v) The Company, its subsidiaries and the Related Entities
hold title to the properties and assets described in the
Prospectus, subject only to the liens and
20
encumbrances securing indebtedness reflected in the Prospectus
and such other liens, encumbrances and matters of record which
do not materially and adversely affect the value of such
properties and assets considered in the aggregate.
(vi) Each Significant Subsidiary of the Company has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease
and operate its properties and to conduct its business as
described in the Prospectus and, to the best of his knowledge
and information, is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction
in which it owns or leases real property, except where the
failure to so qualify would not have a material adverse effect
on the condition, financial or otherwise, or on the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise; and all of the
issued and outstanding capital stock of each such Significant
Subsidiary has been duly authorized and validly issued, is
fully paid and non-assessable and, to the best of his knowledge
and information, is owned by the Company, directly or through
subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity, except
for security interests granted in respect of indebtedness of
the Company or any of its subsidiaries and described in the
Prospectus.
(3) The favorable opinion, dated as of Closing Time, of Brown &
Wood LLP, counsel for the Underwriters in form and substance
satisfactory to the Underwriters.
(4) In giving their opinions required by subsections (b)(1) and
(b)(3), respectively, of this Section, Latham & Watkins (or other
counsel satisfactory to the Underwriters) and Brown & Wood LLP shall
each additionally state that nothing has come to their attention
that would lead them to believe that the Registration Statement or
any amendment thereto, at the time it became effective (or, if an
amendment to the Registration Statement or an Annual Report on Form
10-K has been filed by the Company with the Commission subsequent to
the effectiveness of the Registration Statement, then at the time
such amendment becomes effective or at the time of the most recent
filing of such Annual Report, as the case may be) or at the date of
the applicable Terms Agreement, contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein
not misleading or that the Prospectus, at the date of the applicable
Terms Agreement or at Closing Time, included or includes an untrue
statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; it
being understood that no opinion need be rendered with respect to
the financial statements, schedules and other financial and
statistical data included in the Registration Statement or the
Prospectus. In giving their opinions, Latham & Watkins, Robert P.
Schulman, Esq. (or other counsel satisfactory to the Underwriters)
and Brown & Wood LLP may rely, (1) as to matters involving the laws
of the State of Maryland upon the opinion of Ballard Spahr Andrews &
Ingersoll LLP (or other counsel reasonably
21
satisfactory to counsel for the Underwriters) in form and substance
satisfactory to counsel for the Underwriters, (2) as to all matters
of fact, upon certificates and written statements of officers and
employees of and accountants for the Company, and (3) as to the
qualification and good standing of the Company or any of its
subsidiaries to do business in any state or jurisdiction, upon
certificates of appropriate government officials or opinions of
counsel in such jurisdictions.
(c) At Closing Time, there shall not have been, since the date of the
applicable Terms Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business; and you
shall have received a certificate of the Chief Executive Officer, the
President or Vice President and the chief financial officer or chief
accounting officer of the Company, dated as of such Closing Time, to the
effect that (i) there has been no such material adverse change and (ii) the
representations and warranties in Section 1 are true and correct with the same
force and effect as though made on such Closing Time. As used in this Section
5(c), the term "Prospectus" means the Prospectus in the form first used by the
Underwriters to confirm sales of the Underwritten Securities.
(d) At the time of execution of the applicable Terms Agreement, you
shall have received from PricewaterhouseCoopers LLP a letter dated such date,
in form and substance satisfactory to you, to the effect that (i) they are
independent accountants with respect to the Company within the meaning of the
1933 Act and the 1933 Act Regulations thereunder; (ii) it is their opinion
that the consolidated financial statements and financial statement schedules
of the Company and the historical summaries of revenue and certain operating
expenses for the properties related thereto included or incorporated by
reference in the Registration Statement and the Prospectus and audited by them
and covered by their opinions therein comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act and the
1933 Act Regulations; (iii) they have performed limited procedures, not
constituting an audit, including a reading of the latest available unaudited
interim consolidated financial statements of the Company, a reading of the
minute books of the Company, inquiries of certain officials of the Company who
have responsibility for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, and on the basis
of such limited review and procedures nothing came to their attention that
caused them to believe that (A) any material modifications should be made to
the unaudited financial statements and financial statement schedules of the
Company included or incorporated by reference in the Registration Statement
and the Prospectus for them to be in conformity with generally accepted
accounting principles, (B) the unaudited financial statements and financial
statement schedules of the Company included or incorporated by reference in
the Registration Statement and the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the 1934 Act
as it relates to Form 10-Q and the 1934 Act Regulations, (C) the unaudited
operating data and balance sheet data of the Company in the Registration
Statement and the Prospectus under the caption "Selected Consolidated
Financial Data" were not determined on a basis substantially consistent with
that used in determining the corresponding amounts in the audited financial
statements included or incorporated by reference in the Registration Statement
and the Prospectus, or (D) at a specified date not more than three days prior
to the date of the applicable
22
Terms Agreement, there has been any change in the capital stock of the Company
or in the consolidated long-term debt of the Company or any decrease in the
net assets of the Company, as compared with the amounts shown in the most
recent consolidated balance sheet included or incorporated by reference in the
Registration Statement and the Prospectus or, during the period from the date
of the most recent consolidated statement of operations included or
incorporated by reference in the Registration Statement and the Prospectus to
a specified date not more than three days prior to the date of the applicable
Terms Agreement, there were any decreases, as compared with the corresponding
period in the preceding year, in consolidated revenues, or decrease in net
income or net income per share of the Company, except in all instances for
changes, increases or decreases which the Registration Statement and the
Prospectus disclose have occurred or may occur; and (iv) in addition to the
audit referred to in their opinions and the limited procedures referred to in
clause (iii) above, they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts, percentages and
financial information which are included or incorporated by reference in the
Registration Statement and the Prospectus and which are specified by you, and
have found such amounts, percentages and financial information to be in
agreement with the relevant accounting, financial and other records of the
Company and its subsidiaries identified in such letter.
(e) At Closing Time, you shall have received from
PricewaterhouseCoopers LLP a letter dated as of Closing Time to the effect
that they reaffirm the statements made in the letter furnished pursuant to
subsection (d) of this Section, except that the "specified date" referred to
shall be a date not more than three days prior to such Closing Time.
(f) At Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require for
the purpose of enabling them to pass upon the issuance and sale of the
Underwritten Securities and the Warrant Securities, if any, as herein
contemplated and related proceedings, or in order to evidence the accuracy of
any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Underwritten Securities and the
Warrant Securities, if any, as herein contemplated shall be satisfactory in
form and substance to you and counsel for the Underwriters.
(g) In the event the Underwriters exercise their option provided in a
Terms Agreement as set forth in Section 2(b) hereof to purchase all or any
portion of the Option Securities, the representations and warranties of the
Company contained herein and the statements in any certificates furnished by
the Company hereunder shall be true and correct as of each Date of Delivery,
and, at the relevant Date of Delivery, you shall have received:
(i) A certificate, dated such Date of Delivery, of the Chief
Executive Officer, the President or the chief financial or chief
accounting officer of the Company, in, their capacities as such,
confirming that the certificate delivered at Closing Time pursuant
to Section 5(c) hereof remains true and correct as of such Date of
Delivery.
(ii) The favorable opinion of Latham & Watkins, counsel for the
Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date
23
of Delivery, relating to the Option Securities and otherwise
substantially to the same effect as the opinion required by Sections
5(b)(1) and 5(b)(4) hereof.
(iii) The favorable opinion of Robert P. Schulman, Esq.,
counsel for the Company, or other counsel satisfactory to the
Underwriters, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities and otherwise substantially to the same effect as the
opinion required by Sections 5(b)(2) and 5(b)(4) hereof.
(iv) The favorable opinion of Brown & Wood LLP, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities and otherwise to the same effect as the opinion required
by Sections 5(b)(3) and 5(b)(4) hereof.
(v) A letter from PricewaterhouseCoopers LLP, in form and
substance satisfactory to you and dated such Date of Delivery,
substantially the same in scope and substance as the letter
furnished to you pursuant to Section 5(d) hereof, except that the
"specified date" in the letter furnished pursuant to this Section
5(g)(v) shall be a date not more than three days prior to such Date
of Delivery.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, the applicable Terms Agreement
may be terminated by you by notice to the Company at any time at or prior to
the Closing Time, and such termination shall be without liability of any party
to any other party except as provided in Section 4 hereof.
Section 6. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the
information deemed to be part of the Registration Statement pursuant
to Rule 430A(b) or Rule 434 of the 1933 Act Regulations, if
applicable, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in
the Prospectus (or any amendment or supplement thereto) or the
omission, or alleged omission therefrom, of a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission referred to in subsection (i) above, or any
such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
24
(iii) against any and all expense whatsoever (including, the
fees and disbursements of counsel chosen by you), as incurred, which
was reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any
such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by
any Underwriter through you expressly for use in the Registration Statement
(or any amendment thereto) and the Prospectus (or any amendment or supplement
thereto); provided further, that with respect to any preliminary prospectus,
such indemnity shall not inure to the benefit of any Underwriter (or the
benefit of any person controlling such Underwriter) if the person asserting
any such losses, liabilities, claims, damages or expenses purchased the
Underwritten Securities which are the subject thereof from such Underwriter
and if such person was not sent or given a copy of the Prospectus (excluding
any documents incorporated therein by reference) at or prior to confirmation
of the sale of such Underwritten Securities to such person in any case where
such sending or giving is required by the 1933 Act and the untrue statement or
omission of a material fact contained in such preliminary prospectus was
corrected in the Prospectus and the Prospectus was delivered to such
Underwriter a reasonable amount of time prior to the date of delivery of such
confirmation.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act, against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a) of
this Section, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or
any amendment thereto) or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Underwriter through you expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve such indemnifying party
from any liability which it may have otherwise than on account of this
indemnity agreement. An indemnifying party may participate at its own expense
in the defense of such action. If it so elects within a reasonable time after
receipt of such notice, an indemnifying party, jointly with any other
indemnifying parties receiving such notice, may assume the defense of such
action with counsel chosen by it and approved by the indemnified parties
defendant in such action, unless such indemnified parties reasonably object to
such assumption on the ground that there may be legal defenses available to
them which are different from or in addition to those available to such
indemnifying party. If an indemnifying party
25
assumes the defense of such action, the indemnifying parties shall not be
liable for any fees and expenses of counsel for the indemnified parties
incurred thereafter in connection with such action. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
Section 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company and the
Underwriters with respect to the offering of the Underwritten Securities shall
contribute to the aggregate losses, liabilities, claims, damages and expenses
of the nature contemplated by said indemnity agreement incurred by the Company
and one or more of the Underwriters in respect of such offering, as incurred,
in such proportions that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount appearing on the
cover page of the Prospectus in respect of such offering bears to the initial
public offering price appearing thereon and the Company is responsible for the
balance; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. Notwithstanding the provisions of this Section
7, no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Underwritten Securities purchased
by it pursuant to the applicable Terms Agreement and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay in respect of such losses,
liabilities, claims, damages and expenses. For purposes of this Section, each
person, if any, who controls an Underwriter within the meaning of Section 15
of the 1933 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as the Company.
Section 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or the applicable Terms Agreement, or contained in certificates of
officers of the Company submitted pursuant hereto, shall remain operative and
in full force and effect, regardless of any termination of this Agreement or
the applicable Terms Agreement, or investigation made by or on behalf of any
Underwriter or any controlling person, or by or on behalf of the Company and
shall survive delivery of and payment for the Underwritten Securities.
Section 9. Termination of Agreement. (a) This Agreement (excluding
the applicable Terms Agreement) may be terminated for any reason at any time
by the Company or by you upon the giving of 30 days' written notice of such
termination to the other party hereto.
(b) You may also terminate the applicable Terms Agreement, by notice
to the Company, at any time at or prior to the Closing Time if (i) there has
been, since the date of such Terms Agreement or since the respective dates as
of which information is given in the
26
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) there has occurred any
material adverse change in the financial markets in the United States or any
outbreak or escalation of hostilities or other national or international
calamity or crisis, the effect of which is such as to make it, in your
judgment, impracticable to market the Underwritten Securities or enforce
contracts for the sale of the Underwritten Securities, or (iii) trading in any
of the securities of the Company has been suspended by the Commission or the
New York Stock Exchange, or if trading generally on either the New York Stock
Exchange, the American Stock Exchange or the Nasdaq National Market has been
suspended, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices for securities have been required, by either of said
exchanges or by order of the Commission or any other governmental authority,
or if a banking moratorium has been declared by Federal, New York or Maryland
authorities, or (iv) Preferred Shares or Depositary Shares are being offered
and the rating assigned by any nationally recognized statistical rating
organization to any preferred stock of the Company as of the date of the
applicable Terms Agreement shall have been lowered since such date or if any
such rating organization shall have publicly announced that it has placed any
preferred stock of the Company on what is commonly termed a "watch list" for
possible downgrading. As used in this Section 9(b), the term "Prospectus"
means the Prospectus in the form first used by the Underwriters to confirm
sales of the Underwritten Securities.
(c) In the event of any such termination, (x) the covenants set forth
in Section 3 with respect to any offering of Underwritten Securities shall
remain in effect in so long as any Underwriter owns any such Underwritten
Securities purchased from the Company pursuant to the applicable Terms
Agreement and (y) the covenant set forth in Section 3(h) hereof, the
provisions of Section 4 hereof, the indemnity and contribution agreements set
forth in Sections 6 and 7 hereof, and the provisions of Sections 8 and 13
hereof shall remain in effect.
Section 10. Default by One or More of the Underwriters. If one or
more of the Underwriters shall fail at the Closing Time to purchase the
Underwritten Securities which it or they are obligated to purchase under the
applicable Terms Agreement (the "Defaulted Securities"), then you shall have
the right, within 24 hours thereafter, to make arrangements for one or more of
the non-defaulting Underwriters, or any other underwriters, to purchase all,
but not less than all, of the Defaulted Securities in such amounts as may be
agreed upon and upon the terms herein set forth; if however, you shall not
have completed such arrangements within such 24-hour period, then:
(a) if the total number of Defaulted Securities does not exceed
10% of the total number of Underwritten Securities to be purchased
pursuant to such Terms Agreement, the non-defaulting Underwriters
named in such Terms Agreement shall be obligated to purchase the
full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the total number of Defaulted Securities exceeds 10% of
the total number of Underwritten Securities to be purchased pursuant
to such Terms Agreement,
27
the applicable Terms Agreement shall terminate without liability on
the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default under this Agreement and
the applicable Terms Agreement.
In the event of any such default which does not result in a
termination of the applicable Terms Agreement, either you or the Company shall
have the right to postpone the Closing Time for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
the Prospectus or in any other documents or arrangements.
Section 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed Jefferies & Company, Inc., 11100 Santa Monica
Boulevard, 10th Floor, Los Angeles, CA 90025, to the attention of Jerry M.
Gluck, Executive Vice President and General Counsel, and notices to the
Company shall be directed to it at 3333 New Hyde Park Road, New Hyde Park, New
York 11042-0020, attention of Milton Cooper, Chairman of the Board.
Section 12. Parties. This Agreement and the applicable Terms
Agreement shall inure to the benefit of and be binding upon you and the
Company and any Underwriter who becomes a party of such Terms Agreement, and
their respective successors. Nothing expressed or mentioned in this Agreement
or the applicable Terms Agreement is intended or shall be construed to give
any person, firm or corporation, other than those referred to in Sections 6
and 7 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or such Terms Agreement
or any provision herein or therein contained. This Agreement and the
applicable Terms Agreement and all conditions and provisions hereof and
thereof are intended to be for the sole and exclusive benefit of the parties
hereto and thereto and their respective successors and said controlling
persons and officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No purchaser of
Underwritten Securities from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
Section 13. Governing Law and Time. This Agreement and the applicable
Terms Agreement shall be governed by and construed in accordance with the laws
of the State of New York applicable to agreements made and to be performed in
said State. Specified times of day refer to New York City time.
Section 14. Counterparts. This Agreement and the applicable Terms
Agreement may be executed in one or more counterparts, and if executed in more
than one counterpart the executed counterparts shall constitute a single
instrument.
28
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between you and the Company in accordance with its terms.
Very truly yours,
KIMCO REALTY CORPORATION
By /s/ Glenn G. Cohen
---------------------------
Name: Glenn G. Cohen
Title: Treasurer
CONFIRMED AND ACCEPTED, as of the date first above written:
JEFFERIES & COMPANY, INC.
By /s/ Robert M. Werle
------------------------
Name: Robert M. Werle
Title: Managing Director
29