KIMCO REALTY CORPORATION
(a Maryland corporation)
Common Stock, Warrants to Purchase Common Stock, Preferred Stock
and Depositary Shares
UNDERWRITING AGREEMENT
November 12, 1998
CIBC Oppenheimer Corp.
World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Kimco Realty Corporation, a Maryland corporation (the "Company"),
proposes to issue and sell shares of Common Stock, $.01 par value (the "Common
Stock"), or warrants to purchase a number of shares of Common Stock (the
"Common Stock Warrants"), or both, or shares of Preferred Stock, $1.00 par
value (the "Preferred Shares"), from time to time, in one or more offerings on
terms to be determined at the time of sale. The Preferred Shares may be
offered in the form of depositary shares (the "Depositary Shares") represented
by depositary receipts (the "Depositary Receipts"). The Common Stock Warrants
will be issued pursuant to a Common Stock Warrant Agreement (the "Warrant
Agreement") between the Company and a warrant agent (the "Warrant Agent").
Each series of Preferred Shares may vary as to the specific number of shares,
title, stated value, liquidation preference, issuance price, ranking, dividend
rate or rates (or method of calculation), dividend payment dates, any
redemption or sinking fund requirements, any conversion provisions and any
other variable terms as set forth in the applicable articles supplementary
(each, the "Articles Supplementary") relating to such Preferred Shares. As
used herein, "Securities" shall mean the Common Stock, the Common Stock
Warrants, the Preferred Shares, the Depositary Shares and the Depositary
Receipts; and "Warrant Securities" shall mean the Common Stock issuable upon
exercise of Common Stock Warrants. As used herein, "you" and "your," unless
the context otherwise requires, shall mean the parties to whom this Agreement
is addressed together with the other parties, if any, identified in the
applicable Terms Agreement (as hereinafter defined) as additional co-managers
with respect to Underwritten Securities (as hereinafter defined) purchased
pursuant thereto.
Whenever the Company determines to make an offering of Securities
through you or through an underwriting syndicate managed by you, the Company
will enter into an agreement (the "Terms Agreement") providing for the sale of
such Securities (the "Underwritten Securities") to, and the purchase and
offering thereof by, you and such other underwriters, if any, selected by you
as have authorized you to enter into such Terms Agreement on their behalf (the
"Underwriters," which term shall include you whether acting alone in the sale
of the Underwritten Securities or as a member of an underwriting syndicate and
any Underwriter substituted pursuant to Section 10 hereof). The Terms
Agreement relating to the offering of Underwritten Securities shall specify
the number of Underwritten Securities of each class or series to be initially
issued, including the number of Common Stock Warrants, if any (the "Initial
Underwritten Securities"), whether the Initial Underwritten Securities shall
be in the form of Depositary Shares and the fractional amount of Preferred
Shares represented by each Depositary Share, the names of the Underwriters
participating in such offering (subject to substitution as provided in Section
10 hereof), the number of Initial Underwritten Securities which each such
Underwriter severally agrees to purchase, the names of such of you or such
other Underwriters acting as co-managers, if any, in connection with such
offering, the price at which the Initial Underwritten Securities are to be
purchased by the Underwriters from the Company, any initial public offering
price, the time, date and place of delivery and payment, any delayed delivery
arrangements and any other variable terms of the Initial Underwritten
Securities (including, but not limited to, current ratings (in the case of
Preferred Shares and Depositary Shares only), designations, liquidation
preferences, conversion provisions, redemption provisions and sinking fund
requirements and the terms of the Warrant Securities and the terms, prices and
dates upon which such Warrant Securities may be purchased). In addition, each
Terms Agreement shall specify whether the Company has agreed to grant to the
Underwriters an option to purchase additional Underwritten Securities to cover
over-allotments, if any, and the number of Underwritten Securities subject to
such option (the "Option Securities"). As used herein, the term "Underwritten
Securities" shall include the Initial Underwritten Securities and all or any
portion of the Option Securities agreed to be purchased by the Underwriters as
provided herein, if any. The Terms Agreement, which shall be substantially in
the form of Exhibit A hereto, may take the form of an exchange of any standard
form of written telecommunication between you and the Company. Each offering
of Underwritten Securities through you or through an underwriting syndicate
managed by you will be governed by this Agreement, as supplemented by the
applicable Terms Agreement.
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The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-61303) for
the registration of the Securities and Warrant Securities and certain of the
Company's debt securities, under the Securities Act of 1933, as amended (the
"1933 Act"), and the offering thereof from time to time in accordance with
Rule 415 of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations"). Such registration statement (including all
pre-effective amendments thereto) has been declared effective by the
Commission, and the Company has filed such post-effective amendments thereto
as may have been required prior to the execution of the applicable Terms
Agreement and each such post-effective amendment has been declared effective
by the Commission. Such registration statement (as so amended, if applicable),
including all information, if any, deemed to be a part thereof pursuant to
Rule 434 of the 1933 Act Regulations, is collectively referred to herein as
the "Registration Statement" and the final prospectus and the prospectus
supplement relating to the offering of the Underwritten Securities (the
"Prospectus Supplement"), in the form first used to confirm sales by the
Underwriters for use in connection with the offering of the Underwritten
Securities, are collectively referred to herein as the "Prospectus"; provided,
however, that all references to the "Registration Statement" and the
"Prospectus" shall be deemed to include all documents incorporated therein by
reference pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), prior to the execution of the applicable Terms Agreement. All
references in this Agreement to financial 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
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reference to "Registration Statement" herein shall be deemed to be both the
registration statement referred to above (Nos. 333-61303) and the Rule 462
Registration Statement.
Section 1. Representations and Warranties. (a) The Company
represents and warrants to you, as of the date hereof, and to you and each
other Underwriter named in the applicable Terms Agreement, as of the date
thereof, the Closing Time (as hereinafter defined) and each Date of Delivery,
if any (as hereinafter defined) (in each case, a "Representation Date"), as
follows:
(i) The Registration Statement and the Prospectus, at the
time the Registration Statement became effective and at each time
thereafter on which the Company filed an Annual Report on Form 10-K
with the Commission, complied, and as of each Representation Date
will comply, in all material respects with the requirements of the
1933 Act and 1933 Act Regulations; the Registration Statement, at the
time the Registration Statement became effective and at each time
thereafter on which the Company filed an Annual Report on Form 10-K
with the Commission, did not, and at each time thereafter on which
any amendment to the Registration Statement becomes effective or the
Company files an Annual Report on Form 10-K with the Commission and
as of each Representation Date will not, contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; and the Prospectus, as of the date hereof, does not, and
as of each Representation Date will not, include an untrue statement
of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by any Underwriter
through you expressly for use in the Registration Statement or
Prospectus.
(ii) The accountants who certified the financial statements,
financial statement schedules and historical summaries of revenue and
certain operating expenses for the properties related thereto
included or incorporated by reference in the Registration Statement
and the Prospectus are independent public accountants as required by
the 1933 Act and the 1933 Act Regulations.
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(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 date 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 dated included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the
information required to be stated therein.
(iv) The historical summaries of revenue and certain
operating expenses included or incorporated by reference in the
Registration Statement and the Prospectus, if any, present fairly the
revenue and those operating expenses included in such summaries for
the periods specified in conformity with generally accepted
accounting principles; the pro forma condensed consolidated financial
statements included or incorporated by reference in the Registration
Statement and the Prospectus, if any, present fairly the pro forma
financial position of the Company and its consolidated subsidiaries
as at the dates indicated and the pro forma results of their
operations for the periods specified; and the pro forma condensed
consolidated financial statements, if any, have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis, the assumptions on which such pro forma financial
statements have been prepared are reasonable and are set forth in the
notes thereto, such pro forma financial statements have been
prepared, and the pro forma adjustments set forth therein have been
applied, in accordance with the applicable accounting requirements of
the 1933 Act and the 1933 Act Regulations, and such pro forma
adjustments have been properly applied to the historical amounts in
the compilation of such statements.
(v) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as may
otherwise be stated therein or contemplated thereby, (A) there has
been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, (B) there
have been no transactions or acquisitions entered into by the Company
or any of its subsidiaries other than those arising in the ordinary
course of business, which are material with respect to the Company
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and its subsidiaries considered as one enterprise, and (C) except for
regular quarterly dividends on the Company's common stock, or
dividends declared, paid or made in accordance with the terms of any
series of the Company's preferred stock, there has been no dividend
or distribution of any kind declared, paid or made by the Company on
any class of its capital stock.
(vi) The Company has been duly incorporated and is validly
existing as a corporation under the laws of Maryland and is in good
standing with the State Department of Assessments and Taxation of
Maryland with corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the
Prospectus; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not have a
material adverse effect on the condition, financial or otherwise, or
on the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise; and the
Articles Supplementary relating to the Preferred Shares or Depositary
Shares, if applicable, will be in full force and effect as of each
Representation Date.
(vii) Each significant subsidiary (as defined in Rule 1-02 of
Regulation S-X promulgated under the 0000 Xxx) 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
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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); and the
outstanding capital stock of the Company has been duly authorized and
validly issued and is fully paid and non-assessable and is not
subject to preemptive or other similar rights.
(ix) The Underwritten Securities being sold pursuant to the
applicable Terms Agreement and, if applicable, the deposit of the
Preferred Shares in accordance with the provisions of a Deposit
Agreement (each, a "Deposit Agreement"), among the Company, the
financial institution named in the Deposit Agreement (the
"Depositary") and the holders of the Depositary Receipts issued
thereunder, have, as of each Representation Date, been duly
authorized by the Company and such Underwritten Securities have been
duly authorized 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
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the Common Stock Warrants conform in all material respects to all
statements relating thereto contained in the Prospectus.
(xi) If applicable, the shares of Common Stock issuable upon
conversion of any of the Preferred Shares or the Depositary Shares,
or the Warrant Securities, will have been duly and validly authorized
and reserved for issuance upon such conversion or exercise by all
necessary corporate action and such shares, when issued upon such
conversion or exercise, will be duly and validly issued and will be
fully paid and non-assessable, and the issuance of such shares upon
such conversion or exercise will not be subject to preemptive or
other similar rights; the shares of Common Stock issuable upon
conversion of any of the Preferred Shares or the Depositary Shares,
or the Warrant Securities, conform in all material respects to the
descriptions thereof in the Prospectus.
(xii) The applicable Warrant Agreement, if any, and the
applicable Deposit Agreement, if any, will have been duly authorized,
executed and delivered by the Company prior to the issuance of any
applicable Underwritten Securities, and each constitutes a valid and
legally binding agreement of the Company enforceable in accordance
with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other similar laws relating to or affecting
creditors' rights generally and by general equity principles
(regardless of whether enforcement is considered in a proceeding in
equity or at law); and the Warrant Agreement, if any, and the Deposit
Agreement, if any, each conforms in all material respects to all
statements relating thereto contained in the Prospectus.
(xiii) If applicable, upon execution and delivery of the
Depositary Receipts pursuant to the terms of the Deposit Agreement,
the persons in whose names such Depositary Receipts are registered
will be entitled to the rights specified therein and in the Deposit
Agreement, except as enforcement of such rights may be limited by
bankruptcy, insolvency or other similar laws relating to or affecting
creditors' rights generally and by general equity principles
(regardless of whether enforcement is considered in a proceeding in
equity or at law).
(xiv) Neither the Company nor any of its subsidiaries is in
violation of its charter or by-laws or in default in the performance
or observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other
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instrument to which the Company or any of its subsidiaries is a party
or by which it or any of them may be bound, or to which any of the
property or assets of the Company or any of its subsidiaries is
subject, except for any such violation or default that would not have
a material adverse effect on the condition, financial or otherwise,
or on the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise; and the
execution, delivery and performance of this Agreement, the applicable
Terms Agreement, the applicable Warrant Agreement, if any, or the
applicable Deposit Agreement, if any, and the consummation of the
transactions contemplated herein and therein and compliance by the
Company with its obligations hereunder and thereunder have been duly
authorized by all necessary corporate action, and will not conflict
with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant
to any contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which the Company or any of its subsidiaries is a
party or by which it or any of them may be bound, or to which any of
the property or assets of the Company or any of its subsidiaries is
subject, nor will such action result in any violation of the charter
or by-laws of the Company or any applicable law, administrative
regulation or administrative or court order or decree.
(xv) The Company has operated and intends to continue to
operate in such a manner as to qualify to be taxed as a "real estate
investment trust" under the Internal Revenue Code of 1986, as amended
(the "Code"), for the taxable year in which sales of the Underwritten
Securities are to occur.
(xvi) Neither the Company nor any of its subsidiaries is an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended (the "1940 Act").
(xvii) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company, threatened against or
affecting the Company or any of its subsidiaries which is required to
be disclosed in the Prospectus (other than as disclosed therein), or
which might result in any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as
one enterprise, or which might materially and adversely
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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, authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct
the business now operated by them, other than those the failure to
possess or own would not have a material adverse effect on the
condition, financial or otherwise, or on the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, and neither the Company nor any of its
subsidiaries has received any notice of proceeding 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.
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(xxi) The Company has full corporate power and authority to
enter into this Agreement, the applicable Terms Agreement and the
Delayed Delivery Contracts, if any, and this Agreement has been, and
as of each Representation Date, the applicable Terms Agreement and
the Delayed Delivery Contracts, if any, will have been, duly
authorized, executed and delivered by the Company.
(xxii) The documents incorporated or deemed to be incorporated
by reference in the Prospectus, at the time they were or hereafter
are filed with the Commission, complied and will comply in all
material respects with the requirements of the 1934 Act and the rules
and regulations of the Commission under the 1934 Act (the "1934 Act
Regulations"), and, when read together with the other information in
the Prospectus, at the time the Registration Statement became
effective and as of the applicable Representation Date or during the
period specified in Section 3(f), did not and will not include an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading.
(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
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Company, Related Entities nor any lessee of any portion of any such
party's properties is in default under any of the leases pursuant to
which any of the Company, its subsidiaries or, to the knowledge of
the Company, Related Entities leases its properties and neither the
Company, nor any of its subsidiaries or Related Entities knows of any
event which, but for the passage of time or the giving of notice, or
both, would constitute a default under any of such leases; (v) no
tenant under any of the leases pursuant to which any of the Company,
or its subsidiaries or, to the knowledge of the Company, Related
Entities leases its properties has an option or right of first
refusal to purchase the premises demised under such lease; (vi) each
of the properties of any of the Company or, to the knowledge of the
Company, its subsidiaries or Related Entities complies with all
applicable codes and zoning laws and regulations; and (vii) neither
the Company nor any of its subsidiaries has knowledge of any pending
or threatened condemnation, zoning change or other proceeding or
action that will in any manner affect the size of, use of,
improvements on, construction on, or access to the properties of any
of the Company, or its subsidiaries or Related Entities.
(xxiv) Title insurance in favor of the mortgagee or the
Company, its subsidiaries and/or their Related Entities is maintained
with respect to each shopping center property owned by any such
entity in an amount at least equal to (a) the cost of acquisition of
such property or (b) the cost of construction of such property
(measured at the time of such construction), except, in each case,
where the failure to maintain such title insurance would not have a
material adverse effect on the condition, financial or otherwise, or
on the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise.
(xxv) The mortgages and deeds of trust encumbering the
properties and assets described in the Prospectus are not convertible
nor does any of the Company, or its subsidiaries hold a participating
interest therein.
(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,
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whether enforcement is considered in a proceeding in equity or at
law, and the discretion of the court before which any proceeding
therefor may be brought, and the execution, delivery and performance
of any of such agreements did not, at the time of execution and
delivery, and does not constitute a breach of, or default under, the
charter or by-laws of such party or any material contract, lease or
other instrument to which such party is a party or by which its
properties may be bound or any law, administrative regulation or
administrative or court order or decree.
(xxvii) None of the Company, or any of its subsidiaries has any
knowledge of (a) the unlawful presence of any hazardous substances,
hazardous materials, toxic substances or waste materials
(collectively, "Hazardous Materials") on any of the properties owned
by it or the Related Entities, or (b) any unlawful spills, releases,
discharges or disposal of Hazardous Materials that have occurred or
are presently occurring off such properties as a result of any
construction on or operation and use of such properties which
presence or occurrence would have a material adverse effect on the
condition, financial or otherwise, or on the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise; and in connection with the construction
on or operation and use of the properties owned by the Company, its
subsidiaries and Related Entities, each of the Company, and its
subsidiaries represents that, as of each Representation Date, it has
no knowledge of any material failure to comply with all applicable
local, state and federal environmental laws, regulations, ordinances
and administrative and judicial orders relating to the generation,
recycling, reuse, sale, storage, handling, transport and disposal of
any Hazardous Materials.
(b) Any certificate signed by any officer of the Company and
delivered to you or to counsel for the Underwriters in connection with the
offering of the Underwritten Securities shall be deemed a representation and
warranty by the Company to each Underwriter participating in such offering as
to the matters covered thereby on the date of such certificate and, unless
subsequently amended or supplemented, at each Representation Date subsequent
thereto.
Section 2. Purchase and Sale. (a) The several commitments of
the Underwriters to purchase the Underwritten Securities pursuant to the
applicable Terms Agreement shall be deemed to have been made on the basis of
the representations and warranties herein contained and shall be subject to
the terms and conditions herein set forth.
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(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.
(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 Xxxxxxx and Xxxxxx, 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000, or at such other place as shall be agreed upon by you and the Company,
at 10:00 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
-14-
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 Xxxxxxx and Xxxxxx, 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
-15-
that the Company will enter into Delayed Delivery Contracts and the number of
Underwritten Securities to be purchased by each of them, and the Company will
advise you, at least two business days prior to the Closing Time, of the names
of the institutions with which the making of Delayed Delivery Contracts is
approved by the Company and the number of Underwritten Securities to be
covered by each such Delayed Delivery Contract.
The number of Underwritten Securities agreed to be purchased by the
several Underwriters pursuant to the applicable Terms Agreement shall be
reduced by the number of Underwritten Securities covered by Delayed Delivery
Contracts, as to each Underwriter as set forth in a written notice delivered
by you to the Company; provided, however, that the total number of
Underwritten Securities to be purchased by all Underwriters shall be the total
number of Underwritten Securities covered by the applicable Terms Agreement,
less the number of Underwritten Securities covered by Delayed Delivery
Contracts.
Section 3. Covenants of the Company. The Company covenants with
you, and with each Underwriter participating in the offering of Underwritten
Securities, as follows:
(a) If the Company does not elect to rely on Rule 434 under the
1933 Act Regulations, immediately following the execution of the applicable
Terms Agreement, the Company will prepare a Prospectus Supplement setting
forth the number of Underwritten Securities covered thereby and their terms
not otherwise specified in the Prospectus pursuant to which the Underwritten
Securities are being issued, the names of the Underwriters participating in
the offering and the number of Underwritten Securities which each severally
has agreed to purchase, the names of the Underwriters acting as co-managers in
connection with the offerings, 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 may
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
-16-
1933 Act Regulations and will provide the Underwriters with copies of the form
of Rule 434 Prospectus, in such number as you shall reasonably request, and
promptly file or transmit for filing with the Commission the form of
Prospectus complying with Rule 434(c)(2) of the 1933 Act Regulations in
accordance with Rule 424(b) of the 1933 Act Regulations.
(b) The Company will notify you immediately, and confirm such
notice in writing, of (i) the effectiveness of any amendment to the
Registration Statement, (ii) the transmittal to the Commission for filing of
any Prospectus Supplement or other supplement or amendment to the Prospectus
or any document to be filed pursuant to the 1934 Act, (iii) the receipt of any
comments from the Commission, (iv) any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, and (v) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose; and the
Company will make every reasonable effort to prevent the issuance of any stop
order and, if any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(c) At any time when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act in connection with sales of the
Underwritten Securities, the Company will give you notice of its intention to
file or prepare any amendment to the Registration Statement or any amendment
or supplement to the Prospectus, whether pursuant to the 1933 Act, 1934 Act or
otherwise (including any revised prospectus which the Company proposes for use
by the Underwriters in connection with an offering of Underwritten Securities
which differs from the Prospectus on file at the Commission at the time the
Registration Statement first becomes effective, whether or not such revised
prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act
Regulations, or any abbreviated term sheet prepared in reliance on Rule 434 of
the 1933 Act Regulations), and will furnish you with copies of any such
amendment or supplement or other documents proposed to be filed or used a
reasonable amount of time prior to such proposed filing or use, as the case
may be, and will not file any such amendment or supplement or other documents
in a form to which you or counsel for the Underwriters shall reasonably
object.
(d) The Company will deliver to each Underwriter as many signed and
conformed copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference
-17-
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 file with the Commission such amendment or supplement, whether by filing
documents pursuant to the 1933 Act, the 1934 Act or otherwise, as may be
necessary to correct such untrue statement or omission or to make the
Registration Statement and Prospectus comply with such requirements.
(g) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Underwritten Securities, the Warrant Securities,
if any, and the shares of Common Stock issuable upon conversion of the
Preferred Shares or the Depositary Shares, if any, for offering and sale under
the applicable securities laws and real estate syndication laws of such states
and other jurisdictions of the United States as you may designate. In each
jurisdiction in which the Underwritten Securities, the Warrant Securities, if
any, and the shares of Common Stock issuable upon conversion of the Preferred
Shares or the Depositary Shares, if any, have been so qualified, the Company
will file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for so long as may be
required for the distribution of the Underwritten Securities and the Warrant
Securities, if any; provided, however, that the Company shall not
-18-
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) [Intentionally Left Blank]
(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.
(m) If the Underwritten Securities are Common Stock, the Company
will use its best efforts to list such shares of Common Stock on the New York
Stock Exchange or such other national securities exchange on which the
Company's shares of Common Stock are then listed. If the Preferred Shares or
Depository 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.
-19-
(n) The Company has complied and will comply with the provisions of
Florida H.B. 1771, codified as Section 517.075 of the Florida Statutes, 1987,
as amended, and all regulations thereunder relating to issuers doing business
with Cuba.
Section 4. Payment of Expenses. The Company will pay all
expenses incident to the performance of its obligations under this Agreement
or the applicable Terms Agreement, including (i) the printing and filing of
the Registration Statement as originally filed and of each amendment thereto,
(ii) the printing and filing of this Agreement and the applicable Terms
Agreement, (iii) the preparation, issuance and delivery of the Underwritten
Securities to the Underwriters and the Warrant Securities, if any, (iv) the
fees and disbursements of the Company's counsel and accountants, (v) the
qualification of the Underwritten Securities, the Warrant Securities, if any,
and the shares of Common Stock issuable upon conversion of the Preferred
Shares or the Depositary Shares, if any, under securities laws and real estate
syndication laws in accordance with the provisions of Section 3(g), including
filing fees and the fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
Survey, (vi) the printing and delivery to the Underwriters of copies of the
Registration Statement as originally filed and of each amendment thereto, and
of the Prospectus and any amendments or supplements thereto, including each
abbreviated term sheet delivered by the Company pursuant to Rule 434 of the
1933 Act Regulations, (vii) the printing and delivery to the Underwriters of
copies of the applicable Deposit Agreement, if any, and the applicable Warrant
Agreement, if any, (viii) any fees charged by nationally recognized
statistical rating organizations for the rating of the Securities, (ix) the
fees and expenses, if any, incurred with respect to the listing of the
Underwritten Securities, the Warrant Securities, if any, or the shares of
Common Stock issuable upon conversion of the Preferred Shares or the
Depositary Shares, if any, on any national securities exchange, and (x) the
fees and expenses, if any, incurred with respect to any filing with the
National Association of Securities Dealers, Inc.
If the applicable Terms Agreement is terminated by you in accordance
with the provisions of Section 5 or Section 9(b)(i), the Company shall
reimburse the Underwriters named in such Terms Agreement for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
Section 5. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase Underwritten Securities pursuant
to
-20-
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:
(a) At Closing Time, (i) no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, (ii) if
Preferred Shares or Depositary Shares are being offered, the rating assigned
by any nationally recognized statistical rating organization to any preferred
stock of the Company as of the date of the applicable Terms Agreement shall
not have been lowered since such date nor shall any such rating organization
have publicly announced that it has placed any preferred stock of the Company
on what is commonly termed a "watch list" for possible downgrading, (iii)
there shall not have come to your attention any facts that would cause you to
believe that the Prospectus, together with the applicable Prospectus
Supplement, at the time it was required to be delivered to purchasers of the
Underwritten Securities, included an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in light of the circumstances existing at such time, no misleading
and (iv) the Underwritten Securities or the Common Stock issuable upon
conversion thereof, as applicable in accordance with Section 3(m) hereof,
shall have been duly listed 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
Xxxxxx & Xxxxxxx, 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.
-21-
(iii) The Company is duly qualified as a foreign
corporation to transact business and is in good standing in
each jurisdiction in which it owns or leases real property,
except where the failure to so qualify would not have a
material adverse effect on the condition, financial or
otherwise, or on the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as
one enterprise.
(iv) The authorized, issued and outstanding stock
of the Company is as set forth in the Prospectus under
"Capitalization" 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 or employee and director
stock option plans referred to in the Prospectus); and the
outstanding capital stock of the Company has been duly
authorized, validly issued, fully paid and non-assessable
and is not subject to preemptive or other similar rights
arising by operation of law or, to the best of such
counsel's knowledge otherwise.
(v) The Underwritten Securities being sold
pursuant to the applicable Terms Agreement and, if
applicable, the deposit of the Preferred Shares in
accordance with the provisions of a Deposit Agreement, have
been duly and validly authorized by all necessary corporate
action and such Underwritten Securities have been duly
authorized for issuance and sale pursuant to this Agreement
and such Underwritten Securities, when issued and delivered
by the Company pursuant to this Agreement against payment of
the consideration set forth in the applicable Terms
Agreement or any Delayed Delivery Contract, will be validly
issued, fully paid and non-assessable and will not be
subject to preemptive or other similar rights arising by
operation of law or, to the best of such counsel's
knowledge, otherwise; and the Preferred Shares, if
applicable, conform to the provisions of the Articles
Supplementary.
(vi) If applicable, the Common Stock Warrants have
been duly authorized and, when issued and delivered pursuant
to this Agreement and countersigned by the Warrant Agent as
provided in the Warrant Agreement, will have been duly
executed, countersigned, issued and delivered and will
constitute valid and legally binding
-22-
obligations of the Company entitled to the benefits provided
by the Warrant Agreement under which they are to be issued.
(vii) If applicable, the shares of Common Stock
issuable upon conversion of any of the Preferred Shares or
Depositary Shares, or the exercise of Warrant Securities,
have been duly and validly authorized and reserved for
issuance upon such conversion or exercise by all necessary
corporate action on the part of the Company and such shares,
when issued upon such conversion or exercise in accordance
with the charter of the Company, the Deposit Agreement, the
Terms Agreement, the Delayed Delivery Contract or the
Warrant Agreement, as the case may be, will be duly and
validly issued and will be fully paid and non-assessable,
and the issuance of such shares upon such conversion or
exercise will not be subject to preemptive or other similar
rights arising by operation of law or, to the best of such
counsel's knowledge, otherwise.
(viii) The applicable Warrant Agreement, if any, and
the applicable Deposit Agreement, if any, have been duly
authorized, executed and delivered by the Company, and
(assuming due authorization, execution and delivery by the
Warrant Agent in the case of the Warrant Agreement, and the
Depositary, in the case of the Deposit Agreement) each
constitutes a valid and legally binding agreement of the
Company enforceable in accordance with its terms; and the
Warrant Agreement, if any, and the Deposit Agreement, if
any, conforms in all material respects to all statements
relating thereto contained in the Prospectus.
(ix) If applicable, upon execution and delivery of
the Depositary Receipts pursuant to the terms of the Deposit
Agreement, the persons in whose names such Depositary
Receipts are registered will be entitled to the rights
specified therein and in the Deposit Agreement.
(x) Each of this Agreement, the applicable Terms
Agreement and the Delayed Delivery Contracts, if any, has
been duly authorized, executed and delivered by the Company.
(xi) The Registration Statement is effective under
the 1933 Act and, to the best of such counsel's knowledge,
no stop order
-23-
suspending the effectiveness of the Registration Statement
has been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission.
(xii) The Registration Statement and the Prospectus,
excluding the documents incorporated by reference therein,
as of their respective effective or issue dates, comply as
to form in all material respects with the requirements for
registration statements on Form S-3 under the 1933 Act and
the 1933 Act Regulations; it being understood, however, that
no opinion need be rendered with respect to the financial
statements, schedules and other financial and statistical
data included or incorporated by reference in the
Registration Statement or the Prospectus; it being
understood, further, that in passing upon the compliance as
to form of the Registration Statement and the prospectus,
such counsel may assume that the statements made therein are
correct and complete. If applicable, the Rule 434 Prospectus
conforms in all material respects to the requirements of
Rule 434 under the 1933 Act Regulations.
(xiii) Each document filed pursuant to the 1934 Act
and incorporated or deemed to be incorporated by reference
in the Prospectus (other than the financial statements,
schedules and other financial and statistical data included
therein, as to which no opinion need be rendered) complied
when so filed as to form in all material respects with the
1934 Act and the 1934 Act Regulations. In passing upon
compliance as to form of such documents, such counsel may
assume that the statements made therein are correct and
complete.
(xiv) If applicable, the relative rights
preferences, interests and powers of the Preferred Shares or
Depositary Shares, as the case may be, are as set forth in
the Articles Supplementary relating thereto, and all such
provisions are valid under the Maryland General Corporation
Law ("MGCL"); and, as applicable, the form of certificate
used to evidence Preferred Shares being represented by the
Depositary Shares and the form of certificate used to
evidence the related Depositary Receipts are in due and
proper form under the MGCL and comply with all applicable
statutory requirements under the MGCL.
(xv) The Underwritten Securities, the Warrant
Securities, and the shares of Common Stock issuable upon
conversion of the
-24-
Preferred Shares or Depositary Shares, if applicable,
conform in all material respects to the statements relating
thereto contained in the Prospectus.
(xvi) No authorization, approval or consent of any
court or governmental authority or agency is required that
has not been obtained in connection with the consummation by
the Company of the transactions contemplated by this
Agreement, the applicable Terms Agreement, the applicable
Deposit Agreement, if any, or the applicable Warrant
Agreement, if any, except such as may be required under the
1933 Act, 1934 Act and state securities laws or real estate
syndication laws.
(xvii) Neither the Company nor any of its
subsidiaries is required to be registered under the 0000
Xxx.
(xviii) Commencing with the Company's taxable year
beginning January 1, 1992, the Company has been organized in
conformity with the requirements for qualification as a
"real estate investment trust," and its method of operation
will enable it to meet the requirements for qualification
and taxation as a "real estate investment trust" under the
Code, provided that such counsel's opinion as to this matter
shall be conditioned upon certain representations as to
factual matters made by the Company to such counsel as
described therein.
(xix) The statements set forth (a) in the Prospectus
under the caption "Certain Federal Income Tax Considerations
to the Company of its REIT Election" and (b) in the
Prospectus Supplement under the caption "Certain Federal
Income Tax Considerations," to the extent such statements
constitute matters of law, summaries of legal matters, or
legal conclusions, have been reviewed by them and are
accurate in all material respects.
The opinions rendered in (vi), (viii) and (ix) of subsection
(b)(1) are subject to the following exceptions, limitations and
qualifications: (i) the effect of bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to or affecting the rights and remedies of creditors;
and (ii) the effect of general principles of equity, whether
enforcement is considered in a proceeding in equity or at law, and
-25-
the discretion of the court before which any proceeding therefor may
be brought.
(2) The favorable opinion, dated as of Closing Time, of
Xxxxxx X. Xxxxxxxx, Esq., counsel for the Company, or other counsel
satisfactory to the Underwriters, in form and substance satisfactory
to counsel for the Underwriters, to the effect that:
(i) To the best of his knowledge and information,
there are no legal or governmental proceedings pending or
threatened which are required to be disclosed in the
Prospectus, other than those disclosed therein, and all
pending legal or governmental proceedings to which the
Company or any of its subsidiaries is a party or of which
any of the property of the Company or its subsidiaries is
the subject which are not described in the Prospectus,
including ordinary routine litigation incidental to the
business, are, considered in the aggregate, not material.
(ii) To the best of his knowledge and information,
there are no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to
be described or referred to in the Registration Statement or
the Prospectus or to be filed as exhibits to the
Registration Statement other than those described or
referred to therein or filed as exhibits thereto, the
descriptions thereof or references thereto are correct, and,
to the best of his knowledge and information, no default
exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage (except as otherwise
described in the Prospectus), loan agreement, note, lease or
other instrument so described, referred to or filed which
would have a material adverse effect on the condition,
financial or otherwise, or on the earnings, business or
business prospects of the Company and its subsidiaries
considered as one enterprise.
(iii) To the best of his knowledge and information,
the execution and delivery of this Agreement, the applicable
Terms Agreement, the applicable Deposit Agreement, if any,
or the applicable Warrant Agreement, if any, and the
consummation of the transactions contemplated herein and
therein and compliance by the Company with its obligations
hereunder and thereunder will not
-26-
conflict with or constitute a breach of, or default under,
or result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to
which the Company or any of its subsidiaries is a party or
by which it or any of them may be bound or to which any of
the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in
violation of the provisions of the charter or by-laws of the
Company or any applicable law, administrative regulation or
administrative or court order or decree.
(iv) Each of the partnership and joint venture
agreements to which the Company or any of its subsidiaries
is a party, and which relates to real property described in
the Prospectus, has been duly authorized, executed and
delivered by such applicable party and constitutes the valid
agreement thereof, enforceable in accordance with its terms,
except as limited by bankruptcy and general equitable
principles and the execution, delivery and performance of
any of such agreements did not, at the time of execution and
delivery, and does not constitute a breach of, or default
under, the charter or by-laws of such party or any material
contract, lease or other instrument to which such party is a
party or by which its properties may be bound or any law,
administrative regulation or administrative or court order
or decree.
(v) The Company, its subsidiaries and the Related
Entities hold title to the properties and assets described
in the Prospectus, subject only to the liens and
encumbrances securing indebtedness reflected in the
Prospectus and such other liens, encumbrances and matters of
record which do not materially and adversely affect the
value of such properties and assets considered in the
aggregate.
(vi) Each Significant Subsidiary of the Company has
been duly incorporated and is validly existing as a
corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and, to
the best of his knowledge and information, is duly qualified
as a foreign corporation to transact business and is in good
standing in each
-27-
jurisdiction in which its owns or leases real property,
except where the failure to so qualify would not have a
material adverse effect on the condition, financial or
otherwise, or on the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as
one enterprise; and all of the issued and outstanding
capital stock of each such Significant Subsidiary has been
duly authorized and validly issued, is fully paid and
non-assessable and, to the best of his knowledge and
information, is owned by the Company, directly or through
subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity, except
for security interests granted in respect of indebtedness of
the Company or any of its subsidiaries and described in the
Prospectus.
(3) The favorable opinion, dated as of Closing Time, of
Xxxxxxx and Xxxxxx, counsel for the Underwriters in form and
substance satisfactory to the Underwriters.
(4) In giving their opinions required by subsections
(b)(1), (b)(2) and (b)(3), respectively, of this Section, Xxxxxx &
Xxxxxxx, Xxxxxx X. Xxxxxxxx, Esq. (or other counsel satisfactory to
the Underwriters) and Xxxxxxx and Xxxxxx shall each additionally
state that nothing has come to their attention that would lead them
to believe that the Registration Statement or any amendment thereto,
at the time it became effective (or, if an amendment to the
Registration Statement or an Annual Report on Form 10-K has been
filed by the Company with the Commission subsequent to the
effectiveness of the Registration Statement, then at the time such
amendment becomes effective or at the time of the most recent filing
of such Annual Report, as the case may be) or at the date of the
applicable Terms Agreement, contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein
not misleading or that the Prospectus, at the date of the applicable
Terms Agreement or at Closing Time, included or includes an untrue
statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; it
being understood that no opinion need be rendered with respect to the
financial statements, schedules and other financial and statistical
data included in the Registration Statement or the Prospectus. In
giving their opinions, Xxxxxx & Xxxxxxx, Xxxxxx X. Xxxxxxxx, Esq. (or
other counsel satisfactory to the Underwriters) and Xxxxxxx and
Xxxxxx may rely, (1) as to matters involving
-28-
the laws of the State of Maryland the opinion of Xxxxxxx Xxxxx
Xxxxxxx & Ingersoll (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 written statements of officers and employees of and
accountants for the Company, and (3) as to the qualification and good
standing of the Company or any of its subsidiaries to do business in
any state or jurisdiction, upon certificates of appropriate
government officials or opinions of counsel in such jurisdictions.
(c) At Closing Time, there shall not have been, since the date of
the applicable Terms Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business; and you
shall have received a certificate of the Chief Executive Officer, the
President or Vice President and the chief financial officer or chief
accounting officer of the Company, dated as of such Closing Time, to the
effect that (i) there has been no such material adverse change and (ii) the
representations and warranties in Section 1 are true and correct with the same
force and effect as through made on such Closing Time. As used in this Section
5(c), the term "Prospectus" means the Prospectus in the form first used by the
Underwriters to confirm sales of the Underwritten Securities.
(d) At the time of execution of the applicable Terms Agreement, you
shall have received from Coopers & Xxxxxxx L.L.P. 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 requires 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
-29-
such limited review and procedures nothing came to their attention that
caused them to believe that (A) any material modifications should be made to
the unaudited financial statements and financial statement schedules of the
Company included or incorporated by reference in the Registration Statement
and the Prospectus for them to be in conformity with generally accepted
accounting principles, (B) the unaudited financial statements and financial
statement schedules of the Company included or incorporated by reference in
the Registration Statement and the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the 1934 Act
as it relates to Form 10-Q and the 1934 Act Regulations, (C) the unaudited
operating data and balance sheet data of the Company in the Registration
Statement and the Prospectus under the caption "Selected Consolidated
Financial Data" were not determined on a basis substantially consistent with
that used in determining the corresponding amounts in the audited financial
statements included or incorporated by reference in the Registration Statement
and the Prospectus, or (D) at a specified date not more than three days prior
to the date of the applicable Terms Agreement, there has been any change in
the capital stock of the Company or in the consolidated long-term debt of the
Company or any decrease in the net assets of the Company, as compared with the
amounts shown in the most recent consolidated balance sheet included or
incorporated by reference in the Registration Statement and the Prospectus or,
during the period from the date of the most recent consolidated statement of
operations included or incorporated by reference in the Registration Statement
and the Prospectus to a specified date not more than three days prior to the
date of the applicable Terms Agreement, there were any decreases, as compared
with the corresponding period in the preceding year, in consolidated revenues,
or decrease in net income or net income per share of the Company, except in
all instances for changes, increases or decreases which the Registration
Statement and the Prospectus disclose have occurred or may occur; and (iv) in
addition to the audit referred to in their opinions and the limited procedures
referred to in clause (iii) above, they have carried out certain specified
procedures, not constituting an audit, with respect to certain amounts,
percentages and financial information which are included or incorporated by
reference in the Registration Statement and the Prospectus and which are
specified by you, and have found such amounts, percentages and financial
information to be in agreement with the relevant accounting, financial and
other records of the Company and its subsidiaries identified in such letter.
(e) At Closing Time, you shall have received from Coopers & Xxxxxxx
L.L.P. 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,
-30-
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 Xxxxxx & Xxxxxxx, 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)(i) and 5(b)(iv) hereof.
(iii) The favorable opinion of Xxxxxx X. Xxxxxxxx, Esq.,
counsel for the Company, or other counsel satisfactory to the
Underwriters, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities and otherwise substantially to the same effect as the
opinion required by Sections 5(b)(ii) and 5(b)(iv) hereof.
-31-
(iv) The favorable opinion of Xxxxxxx and Xxxxxx, 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)(iii) and 5(b)(iv) hereof.
(v) A letter from Coopers & Xxxxxxx L.L.P., 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(h)(v) shall
be a date not more than three days prior to such Date of Delivery.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, the applicable Terms Agreement
may be terminated by you by notice to the Company at any time at or prior to
the Closing Time, and such termination shall be without liability of any party
to any other party except as provided in Section 4 hereof.
Section 6. Indemnification. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act against any and all losses, claims, damages and liabilities,
joint or several (including any reasonable investigation, legal and other
expenses incurred in connection with, and any amount paid in settlement of,
any action, suit or proceeding or any claim asserted), to which they, or any
of them, may become subject under the 1933 Act, the 1934 Act or other federal
or state law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or the Prospectus or any amendment thereof or
supplement thereto, or arise out of or are based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however,
that such indemnity shall not inure to the benefit of any Underwriter (or any
person controlling such Underwriter) on account of any losses, claims, damages
or liabilities arising from the sale of the Underwritten Securities to any
person by such Underwriter if such untrue statement or omission or alleged
untrue statement or omission was made in the Registration Statement or the
Prospectus, or such amendment or supplement, in reliance upon and in
conformity with information concerning the Underwriters furnished in writing
to the Company by the Underwriters specifically for use therein. This
indemnity
-32-
agreement will be in addition to any liability which the Company may otherwise
have.
(b) Each Underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company, each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act, each director of the Company and each officer of
the Company who signs the Registration Statement, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only insofar as
such losses, claims, damages or liabilities arise out of or are based upon any
untrue statement or omission or alleged untrue statement or omission which was
made in the Registration Statement or the Prospectus, or any amendment thereof
or supplement thereto, concerning the Underwriters furnished in writing to the
Company by the Underwriters specifically for use therein; provided, however,
that the obligation of each Underwriter to indemnify the Company (including
any controlling person, director or officer thereof) shall be limited to the
underwriting discounts and commissions received by such Underwriter in
connection with the Underwritten Securities purchased by such Underwriter.
(c) Any party that proposes to assert the right to be
indemnified under this Section will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect
of which a claim is to be made against an indemnifying party or parties under
this Section, notify each such indemnifying party of the commencement of such
action, suit or proceeding, enclosing a copy of all papers served. No
indemnification provided for in Section 6(a) or 6(b) shall be available to any
party who shall fail to give notice as provided in this Section 6(c) if the
party to whom notice was not given was unaware of the proceeding to which such
notice would have related and was prejudiced by the failure to give such
notice but the omission so to notify such idemnifying party of any such
action, suit or proceeding shall not relieve it from any liability that it may
have to any indemnified party for contribution or otherwise than under this
Section. In case any such action, suit or proceeding shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
in, and, to the extent that it shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof and the approval by the indemnified party of such counsel, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses, except as
-33-
provided below and except for the reasonable costs of investigation
subsequently incurred by such indemnified party in connection with the defense
thereof. The indemnified party shall have the right to employ its counsel in
any such action, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the employment of counsel by such
indemnified party has been authorized in writing by the indemnifying parties,
(ii) the indemnified party shall have reasonably concluded that there may be a
conflict of interest between the indemnifying parties and the indemnified
party in the conduct of the defense of such action (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party) or (iii) the indemnifying parties
shall not have employed counsel to assume the defense of such action within a
reasonable time after notice of the commencement thereof, in each of which
cases the fees and expenses of counsel shall be at the expense of the
indemnifying parties. An indemnifying party shall not be liable for any
settlement of any action, suit, proceeding or claim effected without its
written consent.
Section 7. Contribution. In order to provide for just and
equitable contribution in circumstances in which the indemnification provided
for in Section 6 is due in accordance with its terms but for any reason is
held to be unavailable from the Company or the Underwriters, the Company and
the Underwriters with respect to the offering of the Underwritten Securities
shall contribute to the aggregate losses, claims, damages and liabilities
(including any investigation, legal and other expenses reasonably incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claims asserted in respect of such offering, but after
deducting any contribution received by the Company from persons other than the
Underwriters, such as persons who control the Company within the meaning of
the 1933 Act, officers of the Company who signed the Registration Statement
and directors of the Company who may also be liable for contribution) to which
the Company and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other from the
transactions contemplated hereby and the applicable Terms Agreement or, if
such allocation is not permitted by applicable law or idemnification is not
available as a result of the indemnifying party not having received notice as
provided in Section 6 hereof, in such proportion as is appropriate to reflect
not only the relative benefits referred to above but also the relative fault
of the Company on the one hand and the Underwriter on the other in connection
with the statements or omissions which resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
-34-
Underwriters shall be deemed to be in the same proportion as (i) the total
proceeds from the offering of the Underwritten Securities (net of underwriting
discounts but before deducting expenses) received by the Company, as set forth
in the table on the cover page of the Prospectus, bear to (ii) the
underwriting discounts and commissions received by the Underwriters, as set
forth in the table on the cover page of the Prospectus. The relative fault of
the Company or the Underwriter shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact related to information supplied by the Company or the Underwriters and
the parties' relative intent, knowledge, access to information and the
opportunity to correct or prevent such statement or omission. The Company and
the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
Section 7, in no case shall any Underwriter be liable or responsible for any
amount in excess of the underwriting discount and commission applicable to the
Underwritten Securities purchased by such Underwriter hereunder; provided,
however, that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20(a) of the 1934 Act shall have the same rights to contribution as
such Underwriter, and each person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, each
officer of the Company who shall have signed the Registration Statement and
each director of the Company shall have the same rights to contribution as the
Company, subject in each case to the immediately preceding sentence of this
Section 7. Any party entitled to contribution will, promptly after receipt of
notice of commencement of any action, suit or proceeding against such party in
respect of which a claim for contribution may be made against another party or
parties under this Section, notify such party or parties from whom
contribution may be sought, but the omission so to notify such party or
parties from whom contribution may be sought shall not relieve the party or
parties from whom contribution may be sought from any other obligation it or
they may have hereunder or otherwise than under this Section. No party shall
be liable for contribution with respect to any action, suit, proceeding or
claim settled without its written consent. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to their
respective underwriting commitments with respect to such Underwritten
Securities and not joint.
-35-
Section 8. Representation, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or the applicable Terms Agreement, or contained in certificates of
officers of the Company submitted pursuant hereto, shall remain operative and
in full force and effect, regardless of any termination of this Agreement or
the applicable Terms Agreement, or investigation made by or on behalf of any
Underwriter or any controlling person, or by or on behalf of the Company and
shall survive delivery of and payment for the Underwritten Securities.
Section 9. Termination of Agreement. (a) This Agreement,
(excluding the applicable Terms Agreement) may be terminated for any reason at
any time by the Company or by you upon the giving of 30 days' written notice
of such termination to the other party hereto.
(b) You may also terminate the applicable Terms Agreement, by
notice to the Company, at any time at or prior to the Closing Time if (i)
there has been, since the date of such Terms Agreement or since the respective
dates as of which information is given in the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings, affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
there has occurred any material adverse change in the financial markets in the
United States or any outbreak or escalation of hostilities or other national
or international calamity or crisis, the effect of which is such as to make
it, in your judgment, impracticable to market the Underwritten Securities or
enforce contracts for the sale of the Underwritten Securities, or in the event
the Underwritten Securities are to be included in a unit investment trust (the
"Trust"), impracticable to market units in the Trust or enforce contracts for
the sale of units in the Trust (iii) trading in any of the securities of the
Company has been suspended by the Commission or the New York Stock Exchange,
or if trading generally on either the New York Stock Exchange, the American
Stock Exchange or the Nasdaq National Market has been suspended, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by either of said exchanges or by order of the
Commission or any other governmental authority, or if a banking moratorium has
been declared by Federal, New York or Maryland authorities, or (iv) if
Preferred Shares or Depository Shares are being offered and the rating
assigned by any nationally recognized statistical rating organization to any
preferred stock of the Company as of the date of the applicable Terms
Agreement shall have been lowered since such date or if any such rating
organization shall have publicly announced that it has placed any preferred
stock
-36-
of the Company on what is commonly termed a "watch list" for possible
downgrading. As used in this Section 9(b), the term "Prospectus" means the
Prospectus in the form first used by the Underwriters to confirm sales of the
Underwritten Securities.
(c) In the event of any such termination, (x) the covenants set
forth in Section 3 with respect to any offering of Underwritten Securities
shall remain in effect in so long as any Underwriter owns any such
Underwritten Securities purchased from the Company pursuant to the applicable
Terms Agreement and (y) the covenant set forth in Section 3(h) hereof, the
provisions of Section 4 hereof, the indemnity and contribution agreements set
forth in Sections 6 and 7 hereof, and the provisions of Sections 8 and 13
hereof shall remain in effect.
Section 10. Default by One or More of the Underwriters. If one
or more of the Underwriters shall fail at the Closing Time to purchase the
Underwritten Securities which it or they are obligated to purchase under the
applicable Terms Agreement (the "Defaulted Securities"), then you shall have
the right, within 24 hours thereafter, to make arrangements for one or more of
the non-defaulting Underwriters, or any other underwriters, to purchase all,
but not less than all, of the Defaulted Securities in such amounts as may be
agreed upon and upon the terms herein set forth; if however, you shall not
have completed such arrangements within such 24-hour period, then:
(a) if the total number of Defaulted Securities does not
exceed 10% of the total number of Underwritten Securities to be
purchased pursuant to such Terms Agreement, the non-defaulting
Underwriters named in such Terms Agreement shall be obligated to
purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the total number of Defaulted Securities exceeds 10%
of the total number of Underwritten Securities to be purchased
pursuant to such Terms Agreement, 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.
-37-
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 c/o CIBC Xxxxxxxxxxx Corp., Attention:
Xxxxx Xxxxx, World Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and notices to
the Company shall be directed to it at 3333 New Hyde Xxxx Xxxx, Xxx Xxxx Xxxx,
Xxx Xxxx 00000-0000, attention of Xxxxxx Xxxxxx, Chairman of the Board.
Section 12. Parties. This Agreement and the applicable Terms
Agreement shall inure to the benefit of and be binding upon you and the
Company and any Underwriter who becomes a party of such Terms Agreement, and
their respective successors. Nothing expressed or mentioned in this Agreement
or the applicable Terms Agreement is intended or shall be construed to give
any person, firm or corporation, other than those referred to in Sections 6
and 7 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or such Terms Agreement
or any provisions 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.
-38-
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/ Xxxxxxx X. Xxxxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer
CONFIRMED AND ACCEPTED, as
of the date first above written:
CIBC XXXXXXXXXXX CORP.
By /s/ Xxxxxx Xxxxx
--------------------------------
Name: Xxxxxx Xxxxx
Title: Executive Director
-39-
KIMCO REALTY CORPORATION
(a Maryland Corporation)
Common Stock
TERMS AGREEMENT
Dated:
-----------------
To: Kimco Realty Corporation
0000 Xxx Xxxx Xxxx Xxxx
Xxxxx 000
New Hyde Park, New York 11042-0020
Attention: Chairman of the Board of Directors
Dear Sirs:
We (the "Representative") understand that Kimco Realty Corporation, a
Maryland corporation (the "Company"), proposes to issue and sell the number of
shares of its common stock, $.01 par value per share (the "Common Stock"), 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, and a proportionate share of Option Securities (as defined
in the Underwriting Agreement) to the extent any are purchased, at the
purchase price set forth below.
NUMBER OF SHARES
OF INITIAL
UNDERWRITTEN
UNDERWRITER SECURITIES
TOTAL ==========
-40-
The Underwritten Securities shall have the following terms:
Title of Securities:
Number of Shares:
Public offering price per share: $
--------------
Purchase price per share: $
----------------
Number of Option Securities:
Delayed Delivery Contracts: not authorized
Closing date and location:
All the provisions contained in the document attached as Annex A
hereto entitled "Kimco Realty Corporation--Common Stock, Warrants to Purchase
Common Stock, Preferred Stock and Depositary Shares--UnderwritinG Agreement"
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.
-41-
Please accept this offer no later than 7:00 P.M. (New York City time)
on , 199 by signing a copy of this Terms Agreement in the space
-------- --
set forth below and returning the signed copy to us.
Very truly yours,
CIBC XXXXXXXXXXX CORP.
By
Name:
Title:
Acting for themselves and as
Representatives of
the other named Underwriters
ACCEPTED:
KIMCO REALTY CORPORATION
By
------------------------------------------------
Name:
Title:
-42-
