Exhibit 1(d)
KIMCO REALTY CORPORATION
(a Maryland corporation)
Common Stock, Warrants to Purchase Common Stock, Preferred Stock
and Depositary Shares
UNDERWRITING AGREEMENT
September 9, 2003
Banc of America Securities LLC
9 West 57th Street
New York, NY 10019
Ladies and Gentlemen:
Kimco Realty Corporation, a Maryland corporation (the "Company"),
proposes to issue and sell shares of Common Stock, $.01 par value per share (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
per share (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.
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The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (333-106083) 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, 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
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 furnished to the
Underwriters for use in confirming sales 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 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 (333-106083) 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.
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(ii) The accountants who certified the financial statements
(which term as used in this Agreement includes the related notes
thereto), 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
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 (excluding any
documents incorporated therein by reference pursuant to the 1934 Act
after the execution of the applicable Terms Agreement), 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 or repurchase or redemption by the Company
or any of its subsidiaries of any voting stock.
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(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 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 at the Closing Time.
(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" or in
the latest balance sheet incorporated by reference therein (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 or otherwise 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 has been issued in compliance with federal and state securities
laws except for any failure to comply that would not have a material
adverse effect and is not subject to preemptive or other similar
rights.
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(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 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).
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(xiv) Neither the Company nor any of its subsidiaries is in
violation of its charter or bylaws or in default in the performance or
observance of any 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
acceleration of any obligation 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 bylaws of the Company or any
Significant Subsidiary or any applicable law, administrative regulation
or administrative or court order or decree.
(xv) Commencing with the Company's taxable year beginning
January 1, 1992, the Company has been organized and has operated in
conformity with the requirements for qualification as a "real estate
investment trust," and its organization and proposed method of
operation will enable it to meet the requirements for qualification and
taxation as a "real estate investment trust" under the Internal Revenue
Code of 1986, as amended (the "Code").
(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").
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(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 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, authorizations 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.
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(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.
(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 its subsidiaries or to the
knowledge of the Company, 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.
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(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.
(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 bylaws 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 foreign 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.
(xxviii) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that: (a)
transactions are executed in accordance with management's general or
specific authorization and (b) transactions are recorded as necessary
to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain accountability
for assets.
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(xxix) Except as stated in the Prospectus, neither the Company
nor any of its directors, officers or controlling persons has taken,
nor will it take, directly or indirectly, any action designed to or
that might reasonably be expected to cause or result in stabilization
or manipulation of the price of the Underwritten Securities to
facilitate the sale or resale of the Underwritten Securities.
(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 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.
11
(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 Goodwin Procter LLP, Exchange Place, Boston, Massachusetts 02109, 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 Goodwin Procter 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.
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.
12
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 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 if written notice is
requested by you, confirm such notice in writing as soon as reasonably
practicable, 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.
13
(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 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, subject to Section
3(c), 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.
14
(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.
(k) The Company will not, between the date of the applicable Terms
Agreement and the Closing Time or for such other period as set forth in the
Terms Agreement, without your prior written consent, which shall not be
unreasonably withheld, offer or sell, grant any option for the sale of, or enter
into any agreement to sell, any Securities of the same class or series or
ranking on a parity with such Underwritten Securities (other than the
Underwritten Securities which are to be sold pursuant to such Terms Agreement)
or, if such Terms Agreement relates to Underwritten Securities that are
convertible into Common Stock, any Common Stock or any security convertible into
Common Stock (except for Common Stock issued pursuant to reservations,
agreements, employee benefit plans, dividend reinvestment plans, employee and
director stock option plans or as partial or full payment for properties to be
acquired by the Company), except as may be otherwise provided in the applicable
Terms Agreement. You may release us from the obligations of this Section 3(k) in
your sole discretion at any time without notice.
(l) 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.
15
(m) If the Underwritten Securities are Common Stock, Preferred Shares
or Depositary Shares, the Company will use its best efforts to list such shares
of Common Stock, Preferred Shares or Depositary Shares, as the case may be, 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. You have agreed to
reimburse the Company for certain expenses of the offering in an amount to be
mutually agreed.
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 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:
16
(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, including such Preferred Shares or Depositary Shares, as the
case may be, as of the date of the applicable Terms Agreement shall not have
been lowered or withdrawn since such date nor shall any such rating organization
have publicly announced that it has placed any such 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(m) hereof, shall be approved
for listing on or before the 30th day after Closing Time in accordance with such
Section 3(m).
(b) At Closing Time, you shall have received:
(1) The favorable opinion, dated as of Closing Time, of Latham
& Watkins LLP, counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(i) To the best of such counsel's knowledge, the
outstanding capital stock of the Company is not, and the
Underwritten Securities will not be as of the Closing Time,
subject to preemptive or other similar rights with respect to
the Company that entitle or will entitle any person to acquire
the Underwritten Securities upon issuance arising under any
contract or other agreement of the Company. For purposes of
this opinion, it is understood that such counsel is not
expressing an opinion with respect to preemptive or similar
rights arising under the Maryland General Corporation Law (the
"MGCL") or the charter or bylaws of the Company.
(ii) 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.
17
(iii) If applicable, the Common Stock Warrants will
constitute legally valid and binding obligations of the
Company entitled to the benefits provided by the Warrant
Agreement under which they are to be issued.
(iv) 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), the applicable Warrant Agreement, if any, and the
applicable Deposit Agreement, if any, are each a legally valid
and binding agreement of the Company enforceable in accordance
with its terms.
(v) To the best of such counsel's knowledge, 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, 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 not be subject to
preemptive or other similar rights arising under any contract
or other agreement of the Company. For purposes of this
opinion, it is understood that such counsel is not expressing
an opinion with respect to preemptive or similar rights
arising under the MGCL or the charter or bylaws of the
Company.
(vi) The Registration Statement has become effective
under the 1933 Act. 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 and no
proceedings therefor have been initiated or threatened by the
Commission.
(vii) The Registration Statement, as of the date it
was declared effective, and the Prospectus, as of the date of
the Prospectus Supplement, excluding the documents
incorporated by reference therein, complied 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 Regulation S-T, the Statement
of Eligibility of the trustee on Form T-1, or the financial
statements, schedules or other financial and statistical data
included or incorporated by reference in, or omitted from the
Registration Statement or the Prospectus. 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.
(viii) Each of the documents incorporated by
reference in the Prospectus, as of its respective filing,
complied as to form in all material respects with the
applicable requirements for reports on Forms 10-K, 10-Q and
8-K, and definitive proxy statements under Regulation 14A, as
the case may be, under the 1934 Act and the 1934 Act
Regulations. Such counsel need not express any opinion with
respect to Regulation S-T, the Statement of Eligibility of the
trustee on Form T-1, or the financial statements, schedules or
other financial and statistical data included in, or
incorporated by reference in, or omitted from such reports and
proxy statements. In passing upon compliance as to form of
such documents, such counsel may assume that the statements
made therein are correct and complete.
18
(ix) 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 issuance and sale of the Underwritten Securities
by the Company, to the Underwriters pursuant to the
Underwriting Agreement and the Terms Agreement on the date
hereof do not require any consents, approvals, or
authorizations to be obtained by the Company, or any
registrations, declarations or filings to be made by the
Company, in each case, under any United States federal or New
York state statute, rule or regulation applicable to the
Company that have not been obtained or made, except such as
may be required under the 1933 Act, the 1934 Act or the rules
and regulations of the Commission thereunder and state
securities laws or real estate syndication laws.
(x) If applicable, the form of Depositary Receipt
used to evidence the Depositary Shares complies with the form
therefor prescribed in the Deposit Agreement.
(xi) The Company is not, and immediately after giving
effect to the sale of the Underwritten Securities in
accordance with this Agreement and the applicable Terms
Agreement and the application of the proceeds as described in
the Prospectus under the caption "Use of Proceeds," will not
be, required to be registered as an "investment company"
within the meaning of the 1940 Act.
(xii) Commencing with the Company's taxable year
beginning January 1, 1992, the Company has been organized and
has operated in conformity with the requirements for
qualification as a "real estate investment trust," and its
organization and proposed 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.
(xiii) The statements (a) in the Prospectus under the
caption "Material Federal Income Tax Considerations to Us of
Our REIT Election" and (b) in the applicable prospectus
supplement under the caption "Certain U.S. Federal Income Tax
Consequences," insofar as they purport to summarize certain
provisions of the statutes or regulations referred to therein
are accurate summaries in all material respects.
The opinion rendered in (ii), (iii) and (iv) of subsection
(b)(1) are subject to the following exceptions, limitations and
qualifications: (i) the effect of bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium or other similar laws
now or hereafter in effect relating to or affecting the rights and
remedies of creditors; (ii) the effect of general principles of equity,
whether enforcement is considered in a proceeding in equity or at law
(including the possible unavailability of specific performance or
injunctive relief), concepts of good faith and fair dealing and the
discretion of the court before which any proceeding therefor may be
brought; and (iii) the unenforceability under certain circumstances
under law or court decisions of provisions providing for the
indemnification of or contribution to a party with respect to a
liability where such indemnification or contribution is contrary to
public policy.
19
(2) The favorable opinion, dated as of Closing Time, of
Venable LLP, Maryland 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 authorized, issued and outstanding stock of
the Company is as set forth in the schedule attached to such
opinion (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).
(iv) The outstanding 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 arising under the MGCL, or the charter or
bylaws of the Company.
(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 under the MGCL or the charter or bylaws
of the Company, 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.
20
(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 under
the MGCL or the charter or bylaws of the Company.
(viii) 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.
(ix) The applicable Warrant Agreement, if any, and
the applicable Deposit Agreement, if any, have been duly
authorized, executed and delivered by the Company.
(x) If applicable, the relative rights, preferences,
interests and powers of the Preferred Shares are as set forth
in the Articles Supplementary relating thereto, and none of
such provisions conflicts with the MGCL; and as applicable,
the form of certificate used to evidence Preferred Shares
being represented by the Depositary Shares is in due and
proper form under the MGCL and complies with all applicable
statutory requirements under the MGCL.
(xi) No authorization, approval or consent of any
court or governmental authority or agency is required under
any Maryland state statute, rule or regulation 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 state securities
laws.
(xii) The statements in the Prospectus under the
captions "Description of Common Stock," "Description of Common
Stock Warrants," "Description of Preferred Stock" and
"Description of Depositary Shares," to the extent such
statements describe the Underwritten Securities, the
applicable Warrant Agreement, if any, and/or the applicable
Deposit Agreement, if any, as well as statements under
comparable captions in the applicable prospectus supplement,
insofar as they purport to constitute a summary of the terms
of the Underwritten Securities, the applicable Warrant
Agreement, if any, and/or the applicable Deposit Agreement, if
any, are accurate descriptions or summaries thereof in all
material respects.
21
(3) 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) 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.
(ii) 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 ordinary
routine litigation incidental to the business, are, considered
in the aggregate, not material.
(iii) 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.
(iv) 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 bylaws
of the Company or any applicable law, administrative
regulation or administrative or court order or decree.
22
(v) 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
bylaws 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.
(vi) 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 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.
(vii) 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.
(4) The favorable opinion, dated as of Closing Time, of
Goodwin Procter LLP, counsel for the Underwriters, in form and
substance satisfactory to the Underwriters.
23
(5) In giving their opinions required by subsections (b)(1)
and (b)(4), respectively, of this Section, Latham & Watkins LLP (or
other counsel satisfactory to the Underwriters) and Goodwin Procter LLP
shall each additionally state that no facts have come to their
attention that caused 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, together with the documents incorporated by
reference therein at those dates, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or
that the Prospectus or any amendment or supplement thereto, at the date
of the applicable Terms Agreement, at the date of any such amendment or
supplement or at Closing Time (together with the documents incorporated
by reference therein at those dates or the date hereof), contained or
contains an untrue statement of a material fact or omitted or omits to
state a material fact necessary 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, or incorporated by reference in, or omitted from the
Registration Statement or the Prospectus or the documents incorporated
by reference therein or the Statement of Eligibility of the trustee on
Form T-1. In giving their opinions, Latham & Watkins LLP, Robert P.
Schulman, Esq. (or other counsel satisfactory to the Underwriters) and
Goodwin Procter LLP may rely, (1) as to matters involving the laws of
the State of Maryland upon the opinion of Venable LLP (or other counsel
reasonably 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 oral or written statements and
representations of officers and employees of and accountants for the
Company and others, including the representations and warranties of the
Company in this Agreement, 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 (excluding any documents incorporated therein by
reference pursuant to the 1934 Act after the execution of the applicable Terms
Agreement), 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 (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 and
(iii) The Company has complied with all the agreements hereunder and satisfied
all the conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Time, except as may be waived by you in writing.
24
(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, (D) the unaudited pro forma condensed
financial statements included in or incorporated by reference in the Company's
Registration Statement, if any, do not comply as to form in all material
respects with the applicable accounting requirements of Rule 11-02 of Regulation
S-X under the 1933 Act or that the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of such statements or (E)
at a specified date not more than three days prior to the date of the applicable
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.
25
(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 LLP, counsel
for the Company, 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)(1) and 5(b)(5) hereof.
(iii) The favorable opinion of Venable LLP, counsel for the
Company, 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 Section 5(b)(2) hereof.
(iv) 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 Section 5(b)(3) hereof.
26
(v) The favorable opinion of Goodwin Procter 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)(4) and 5(b)(5) hereof.
(vi) 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)(vi) 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, which notice shall be confirmed in writing by the Underwriters as
soon as reasonably practicable if so requested by the Company, 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, the directors and
officers of 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 any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto) or the
omission, or alleged omission therefrom, of a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(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
(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.
27
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) or any preliminary prospectus or 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 any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through you expressly
for use in the Registration Statement (or any amendment thereto) or any
preliminary prospectus 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 a
conflict may arise between the positions of the indemnifying party and the
indemnified part in conducting the defense of any such action or 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 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, unless the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding sentence
(it being understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel (together with local
counsel), approved by the indemnifying party, representing the indemnified
parties who are parties to such action in which case the fees and expenses of
counsel shall be at the expense of the indemnifying party. 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. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
28
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. The Underwriters' obligation to contribute
pursuant to this Section 7 shall be several in proportion to their respective
underwriting commitments and not joint. 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.
29
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 Prospectus (excluding any documents incorporated
therein by reference pursuant to the 1934 Act after the execution of the
applicable Terms Agreement), (a) 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 (b) there has
occurred any material adverse change in the financial markets in the United
States or in the international financial markets or any outbreak or escalation
of hostilities or other national or international calamity or crisis, or any
change or development involving a prospective change in national or
international political, financial or economic conditions, in the case of clause
(i)(a) or (i)(b) the effect of which is such as to make it, in your reasonable
judgment, impracticable or inadvisable to market the Underwritten Securities or
enforce contracts for the sale of the Underwritten Securities, or (ii) trading
in any of the securities of the Company has been suspended or materially limited
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 materially limited, 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 the Nasdaq National Market or
by order of the Commission, the National Association of Securities Dealers, Inc.
or any other governmental authority, or if a general banking moratorium has been
declared by Federal, New York or Maryland authorities, or (iii) there has
occurred a material disruption in commercial banking or securities settlement or
clearance services, 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, including such Preferred
Shares or Depositary Shares, as the case may be, as of the date of the
applicable Terms Agreement shall have been lowered or withdrawn since such date
or if any such rating organization shall have publicly announced that it has
placed any such preferred stock of the Company on what is commonly termed a
"watch list" for possible downgrading.
(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 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.
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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, 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 to c/o Banc of America Securities LLC, 9 West
57th Street, New York, NY 10019 to the attention of Equity Income Syndicate, 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.
31
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.
32
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: Vice President and Treasurer
CONFIRMED AND ACCEPTED, as of the date first above written:
BANC OF AMERICA SECURITIES LLC
By: /s/ Thomas M. Morrison
-----------------------
Name: Thomas M. Morrison
Title: Head of Equity Syndicate
33
Exhibit A
KIMCO REALTY CORPORATION
(a Maryland corporation)
[Title of Securities]
TERMS AGREEMENT
Dated: [ ]
To: Kimco Realty Corporation
3333 New Hyde Park Road
New Hyde Park, New York 11042-0020
Attention: Chairman of the Board of Directors
Dear Sirs:
We understand that Kimco Realty Corporation, a Maryland corporation
(the "Company"), proposes to issue and sell [ ], set forth below (the
"Underwritten Securities"). Subject to the terms and conditions set forth or
incorporated by reference herein, the underwriters named below (the
"Underwriters") offer to purchase, severally and not jointly, the respective
numbers of Initial Underwritten Securities (as defined in the Underwriting
Agreement referred to below) set forth below opposite their respective names, at
the purchase price set forth below.
Number
of Shares of
Underwritten
Underwriter Securities
----------- ----------
----------------
Total.................................................
================
A-1
The Underwritten Securities shall have the following terms:
Title of Securities:
Number of Shares:
[If applicable, fractional amount of Preferred Shares represented by each
Depositary Share:]
[Current Ratings:]
[Dividend Rate: [ % per annum], Payable:]
[Stated Value:]
[Liquidation Preference:]
[Ranking:]
Public offering price per share: $ [, plus accumulated dividends,
if any, from ,20 .]
Purchase price per share: $ [, plus accumulated dividends, if any,
from ,20 .]
[Conversion provisions:]
[Redemption provisions:]
[Sinking fund requirements:]
Purchase price per share:
Number of Option Securities, if any, that may be purchased by the Underwriters:
Delayed Delivery Contracts: [authorized] [not authorized]
[Date of Delivery:
Minimum Contract:
Maximum number of Shares:
Fee: ]
Additional co-managers, if any:
Other terms:
Closing date and location:
Common Stock Warrants
Number of Common Stock Warrants to be issued:
Warrant Agent:
Issuable jointly with Common Stock: [Yes] [No]
[Number of Common Stock Warrants issued with each share of Common
Stock:] [Detachable data:]
Date from which Common Stock Warrants are exercisable:
Date on which Common Stock Warrants expire:
Exercise price(s) of Common Stock Warrants:
Initial public offering price: $
Purchase price: $
Title of Warrant Securities:
Principal amount purchasable upon exercise of one Common Stock Warrant:
Interest rate: Payable:
Date of maturity:
Redemption provisions:
Sinking fund requirements:
A-2
[Delayed Delivery Contracts: [authorized] [not authorized]
[Date of delivery:
Minimum contract:
Maximum aggregate principal amount:
Fee: %]
Other terms:
[Closing date and location:]
All of the provisions contained in the Underwriting Agreement attached
as Annex A hereto are hereby incorporated by reference in their entirety herein
and shall be deemed to be a part of this Terms Agreement to the same extent as
if such provisions had been set forth in full herein. Terms defined in such
document are used herein as therein defined.
A-3
Please accept this offer no later than 7:00 P.M. (New York City time)
on [______] by signing a copy of this Terms Agreement in the space set forth
below and returning the signed copy to us.
Very truly yours,
BANC OF AMERICA SECURITIES LLC
By:
---------------------------
Name:
Title:
Accepted:
KIMCO REALTY CORPORATION
By:
-------------------------------
Name:
Title:
A-4
Exhibit B
KIMCO REALTY CORPORATION
(A MARYLAND CORPORATION)
[Title of Securities]
DELAYED DELIVERY CONTRACT
, 20__
Kimco Realty Corporation
3333 New Hyde Park Road
New Hyde Park, New York 11042-0020
Attention: Chairman of the
Board of Directors
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Kimco Realty Corporation
(the "Company"), and the Company agrees to sell to the undersigned on
____________, 20__ (the "Delivery Date"), _______________ of the Company's
[insert title of security] (the "Securities"), offered by the Company's
Prospectus dated ____________, ____, as supplemented by its Prospectus
Supplement dated ____________, 20__, receipt of which is hereby acknowledged at
a purchase price of $______ [and, $__________ per Warrant, respectively] to the
Delivery Date, and on the further terms and conditions set forth in this
contract.
Payment for the Securities which the undersigned has agreed to purchase
on the Delivery Date shall be made to the Company or its order by certified or
official bank check in New York Clearing House funds at the office of
____________, on the Delivery Date, upon delivery to the undersigned of the
Securities to be purchased by the undersigned in definitive form and in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than five
full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date shall be subject only to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company, on or before ____________, 20__,
shall have sold to the Underwriters of the Securities (the "Underwriters") such
principal amount of the Securities as is to be sold to them pursuant to the
Terms Agreement dated ____________, 20__, between the Company and the
Underwriters. The obligation of the undersigned to take delivery of and make
payment for Securities shall not be affected by the failure of any purchaser to
take delivery of and make payments for Securities pursuant to other contracts
similar to this contract. The undersigned represents and warrants to you that
its investment in the Securities is not, as of the date hereof, prohibited under
the laws of any jurisdiction to which the undersigned is subject and which
govern such investment.
B-1
Promptly after completion of the sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to the
Company that all necessary corporate action for the due execution and delivery
of this contract and the payment for and purchase of the Securities has been
taken by it and no further authorization or approval of any governmental or
other regulatory authority is required for such execution, delivery, payment or
purchase, and that, upon acceptance hereof by the Company and mailing or
delivery of a copy as provided below, this contract will constitute a valid and
binding agreement of the undersigned in accordance with its terms.
This contract will inure to the benefit of and binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed Delivery
Contracts for a number of Securities in excess of ________ and that the
acceptance of any Delayed Delivery Contract is in the Company's sole discretion
and, without limiting the foregoing, need not be on a first-come, first-served
basis. If this contract is acceptable to the Company, it is requested that the
Company sign the form of acceptance on a copy hereof and mail or deliver a
signed copy hereof to the undersigned at its address set forth below. This will
become a binding contract between the Company and the undersigned when such copy
is so mailed or delivered.
B-2
This Agreement shall be governed by the laws of the State of New York.
Yours very truly,
-----------------------------------
(Name of Purchaser)
By:
---------------------------------
(Title)
------------------------------------
------------------------------------
(Address)
Accepted as of the date first above written.
KIMCO REALTY CORPORATION
By:
------------------------------------
(Title)
PURCHASER-PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser
with whom details of delivery on the Delivery Date may be discussed are as
follows: (Please print.)
Telephone No.
Name (including
----
Area Code)
----------
B-3