EXHIBIT 1-(i)
KIMCO REALTY CORPORATION
(A MARYLAND CORPORATION)
DEBT SECURITIES
UNDERWRITING AGREEMENT
November 18, 2002
BANC ONE CAPITAL MARKETS, INC.
1 BANK XXX XXXXX
XXXXX XX0-0000
XXXXXXX, XXXXXXXX 00000
Ladies and Gentlemen:
Kimco Realty Corporation, a Maryland corporation (the "Company")
proposes to issue and sell its unsecured senior debt securities (the
"Securities"), from time to time, in one or more offerings on terms to be
determined at the time of sale. The Securities will be issued under an indenture
dated as of September 1, 1993, as amended by the First Supplemental Indenture
dated as of August 4, 1994, the Second Supplemental Indenture dated as of April
7, 1995 and as further amended or supplemented from time to time (the
"Indenture") between the Company and Bank of New York (as successor by merger to
IBJ Xxxxxxxx Bank & Trust Company), as trustee (the "Trustee"). Each series of
Securities may vary, as applicable, as to aggregate principal amount, maturity
date, interest rate or formula and timing of payments thereof, redemption and/or
repayment provisions, conversion provisions, sinking fund requirements, if any,
and any other variable terms which the Indenture contemplates may be set forth
in the Securities as issued from time to time. 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 principal
amount of Underwritten Securities to be initially issued (the "Initial
Underwritten Securities"), the names of the Underwriters participating in such
offering (subject to substitution as provided in Section 10 hereof), the
principal amount 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, the initial public offering price, if any, of
the Initial Underwritten Securities, 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,
designations, denominations, interest rates or formulas, interest payment dates,
maturity dates, conversion provisions, redemption and/or repayment provisions
and sinking fund requirements applicable to the Initial Underwritten
Securities). 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 aggregate
principal amount of Underwritten Securities subject to such option (the "Option
Securities"). As used herein, the term "Underwritten Securities" shall include
the Initial Underwritten Securities and all or any portion of the Option
Securities agreed to be purchased by the Underwriters as provided herein, if
any. The Terms Agreement, which shall be substantially in the form of Exhibit A
hereto, may take the form of an exchange of any standard form of written
telecommunication between you and the Company. Each offering of Underwritten
Securities through you or through an underwriting syndicate managed by you will
be governed by this Agreement, as supplemented by the applicable Terms
Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-59970) for the
registration of the Securities (including the Underwritten Securities) and
certain of the Company's equity securities and warrants to purchase such equity
securities, under the Securities Act of 1933, as amended (the "1933 Act"), and
the offering thereof from time to time in accordance with Rule 415 of the rules
and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"). Such registration statement (including all pre-effective
amendments thereto) has been declared effective by the Commission, the Company
has filed such post-effective amendments thereto as may have been required prior
to the execution of the applicable Terms Agreement and each such post-effective
amendment has been declared effective by the Commission and the Indenture has
been qualified under the Trust Indenture Act of 1939, as amended (the "1939
Act") and the rules and regulations of the Commission under the 1939 Act. Such
registration statement (as so amended, if applicable), including all
information, if any, deemed to be a part thereof pursuant to Rule 434 of the
1933 Act Regulations, is referred to herein as the "Registration Statement" and
the final prospectus and the prospectus supplement relating to the offering of
the Underwritten Securities (the "Prospectus Supplement"), in the form first
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 relies on Rule 462(b) for such registration
statement to become effective upon filing with the Commission (the "Rule 462
Registration Statement"), then any reference to "Registration Statement" herein
shall be deemed to be to both the registration statement referred to above (No.
333-59970) and the Rule 462 Registration Statement.
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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 (such latter date being referred to herein as 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, 1933
Act Regulations and the 1939 Act; 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 and at Closing Time (as hereinafter defined) 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 the 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 the Prospectus or to that part of the Registration Statement which
shall constitute the Statement of Eligibility under the 1939 Act (Form
T-1) (the "Statement of Eligibility") of the Trustee under the
Indenture.
(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 dates indicated and the results of
their operations for the periods specified; except as may otherwise be
stated in the Registration Statement and the Prospectus, said financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis; and the financial
statement schedules and other financial information and data included
or incorporated by reference in the Registration Statement and the
Prospectus present fairly the information required to be stated
therein.
(iv) The historical summaries of revenue and certain operating
expenses included or incorporated by reference in the Registration
Statement and the Prospectus, if any, present fairly the revenue and
those operating expenses included in such summaries for the periods
specified in conformity with generally accepted accounting principles;
the pro forma condensed consolidated financial statements included or
incorporated by reference in the Registration Statement and the
Prospectus, if any, present fairly the pro forma financial position of
the Company and its consolidated subsidiaries as at the dates indicated
and the pro forma results of their operations for the periods
specified; and the pro forma condensed consolidated financial
statements, if any, have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis, the
assumptions on which such pro forma financial statements have been
prepared are reasonable and are set forth in the notes thereto, such
pro forma financial statements have been prepared, and the pro forma
adjustments set forth therein have been applied, in accordance with the
applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations, and such pro forma adjustments have been properly applied
to the historical amounts in the compilation of such statements.
(v) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as may
otherwise be stated therein or contemplated thereby, (A) there has been
no material adverse change in the condition, financial or otherwise, or
in the earnings, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, (B) there have been no
transactions or acquisitions entered into by the Company or any of its
subsidiaries other than those arising in the ordinary course of
business, which are material with respect to the Company and its
subsidiaries considered as one enterprise, and (C) except for regular
quarterly dividends on the Company's common stock, par value $.01 per
share (the "Common Stock"), or dividends declared, paid or made in
accordance with the terms of any series of the Company's preferred
stock (the "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.
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(vi) The Company has been duly incorporated and is validly
existing as a corporation under the laws of Maryland and is in good
standing with the State Department of Assessments and Taxation of
Maryland with corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the
Prospectus; and the Company is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to so qualify would not have a material adverse
effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(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 the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise; and all of the issued and
outstanding capital stock of each Significant Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and is
owned by the Company, directly or through subsidiaries, free and clear
of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity, except for security interests granted in respect of
indebtedness of the Company or any of its subsidiaries and referred to
in the Prospectus.
(viii) The Indenture has been duly and validly authorized,
executed and delivered by the Company and constitutes the 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
enforcement of creditors' rights generally or by general equity
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(ix) If applicable, the authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectus under
"Capitalization" (except for subsequent issuances, if any, pursuant to
reservations, agreements, employee benefit plans, dividend reinvestment
plans or employee and director stock option plans referred to in the
Prospectus); and the outstanding capital stock of the Company has been
duly authorized and validly issued and is fully paid and non-assessable
and is not subject to preemptive or other similar rights.
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(x) The Underwritten Securities being sold pursuant to the
applicable Terms Agreement have been duly authorized by the Company for
issuance and sale pursuant to this Agreement and, when issued,
authenticated and delivered pursuant to the provisions of the
Indenture, against payment of the consideration therefor specified in
the applicable Terms Agreement or any Delayed Delivery Contract (as
hereinafter defined), the Underwritten Securities will constitute valid
and legally binding obligations of the Company, enforceable in
accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency or other similar laws relating to or
affecting enforcement of creditors' rights generally or by general
equity principles (regardless of whether enforcement is considered in a
proceeding in equity or at law); the Underwritten Securities and the
Indenture conform in all material respects to all statements relating
thereto contained in the Prospectus; and the Underwritten Securities
will be entitled to the benefits provided by the Indenture.
(xi) If applicable, the Common Stock or Preferred Stock
issuable upon conversion of any of the Underwritten Securities have
been duly and validly authorized and reserved for issuance upon such
conversion by all necessary corporate action and such shares, when
issued upon such conversion, will be duly and validly issued and will
be fully paid and non-assessable, and the issuance of such shares upon
such conversion will not be subject to preemptive or other similar
rights; and the shares of Common Stock or Preferred Stock so issuable
will conform in all material respects, as of the applicable
Representation Date, to all statements relating thereto contained in
the Prospectus.
(xii) 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 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 or the Indenture 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.
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(xiii) 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.
(xiv) 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").
(xv) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, threatened against or affecting
the Company or any of its subsidiaries which is required to be
disclosed in the Prospectus (other than as disclosed therein) or which
might result in any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, or which might materially and adversely affect the
properties or assets thereof or which might materially and adversely
affect the consummation of this Agreement, the applicable Terms
Agreement or the Indenture or the transactions contemplated herein and
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.
(xvi) 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.
(xvii) 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 or the
Indenture, except such as may be required under the 1933 Act, the 1939
Act or the 1933 Act Regulations or state securities laws or real estate
syndication laws.
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(xviii) The Company and its subsidiaries possess such
certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct
the business now operated by them, other than those the failure to
possess or own would not have a material adverse effect on the
condition, financial or otherwise, or on the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as
one enterprise, and neither the Company nor any of its subsidiaries has
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling
or finding, would materially and adversely affect the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise.
(xix) 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.
(xx) 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
as of the applicable Representation Date or Closing Time 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.
(xxi) Except as otherwise disclosed in the Prospectus and
except as would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise: (i) all properties and assets described in the Prospectus
are owned with good and marketable title by the Company, its
subsidiaries and/or a joint venture or partnership in which any such
party is a participant (a "Related Entity"); (ii) all of the leases
under which any of the Company, its subsidiaries or, to the knowledge
of the Company, Related Entities holds or uses real properties or
assets as a lessee are in full force and effect, and neither the
Company, nor any of its subsidiaries or, to the knowledge of the
Company, Related Entities is in material default in respect of any of
the terms or provisions of any of such leases and no claim has been
asserted by anyone adverse to any such party's rights as lessee under
any of such leases, or affecting or questioning any such party's right
to the continued possession or use of the leased property or assets
under any such leases; (iii) all liens, charges, encumbrances, claims
or restrictions on or affecting the properties and assets of any of the
Company, its subsidiaries or Related Entities which are required to be
disclosed in the Prospectus are disclosed therein; (iv) neither the
Company, nor any of its subsidiaries or, to the knowledge of the
Company, Related Entities nor any lessee of any portion of any such
party's properties is in default under any of the leases pursuant to
which any of the Company, its subsidiaries or, to the knowledge of the
Company, Related Entities leases its properties and neither the
Company, nor any of its subsidiaries or Related Entities knows of any
event which, but for the passage of time or the giving of notice, or
both, would constitute a default under any of such leases; (v) no
tenant under any of the leases pursuant to which any of the Company, or
its subsidiaries or, to the knowledge of the Company, Related Entities
leases its properties has an option or right of first refusal to
purchase the premises demised under such lease; (vi) each of the
properties of any of the Company, or to the knowledge of the Company,
its subsidiaries or Related Entities complies with all applicable codes
and zoning laws and regulations; and (vii) neither the Company nor any
of its subsidiaries has knowledge of any pending or threatened
condemnation, zoning change or other proceeding or action that will in
any manner affect the size of, use of, improvements on, construction
on, or access to the properties of any of the Company, its subsidiaries
or Related Entities.
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(xxii) 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.
(xxiii) 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.
(xxiv) Each of the partnership and joint venture agreements to
which the Company or any of its subsidiaries is a party, and which
relates to real property described in the Prospectus, has been duly
authorized, executed and delivered by such applicable party and
constitutes the valid agreement thereof, enforceable in accordance with
its terms, except as limited by (a) the effect of bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting the rights or remedies of
creditors or (b) the effect of general principles of equity, whether
enforcement is considered in a proceeding in equity or at law, and the
discretion of the court before which any proceeding therefor may be
brought, and the execution, delivery and performance of any of such
agreements did not, at the time of execution and delivery, and does not
constitute a breach of, or default under, the charter or by-laws of
such party or any material contract, lease or other instrument to which
such party is a party or by which its properties may be bound or any
law, administrative regulation or administrative or court order or
decree.
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(xxv) 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 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 aggregate
principal amount of Option Securities set forth therein at the same price per
Option Security as is applicable to the Initial 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 aggregate principal amount 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 seven full business days and not be earlier than two full business
days after the exercise of said option, nor in any event prior to Closing Time,
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
aggregate principal amount of Option Securities then being purchased which the
aggregate principal amount of Initial Underwritten securities each such
Underwriter has severally agreed to purchase as set forth in the applicable
Terms Agreement bears to the total aggregate principal amount of Initial
Underwritten securities (except as otherwise provided in the applicable Terms
Agreement).
(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 Sidley Xxxxxx Xxxxx & Xxxx LLP, 20th Floor, 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by you and
the Company, at 9:00 A.M., New York City time, on the fifth business day (unless
postponed in accordance with the provisions of Section 10 hereof) following the
date of the applicable Terms Agreement or at such other time as shall be agreed
upon by you and the Company (each such time and date being referred to as a
"Closing Time"). In addition, in the event that any or all of the Option
Securities are purchased by the Underwriters, payment of the purchase price for,
and delivery of certificates representing, such Option Securities, shall be made
at the above-mentioned office of Sidley Xxxxxx Xxxxx & Xxxx LLP, or at such
other place as shall be agreed upon by you and the Company on each Date of
Delivery as specified in the notice from you to the Company. Unless otherwise
specified in the applicable Terms Agreement, payment shall be made to the
Company by wire transfer or certified or official bank check or checks in
Federal or similar same-day funds payable to the order of the Company against
delivery to you for the respective accounts of the Underwriters for the
Underwritten Securities to be purchased by them. The Underwritten Securities
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 the 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 equal to that percentage of the principal amount of
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 principal amount 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
principal amount 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.
11
You shall submit to the Company, at least two business days prior to
the Closing Time, the names of any institutional investors with which it is
proposed that the Company will enter into Delayed Delivery Contracts and the
principal amount 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 principal amount of Underwritten
Securities to be covered by each such Delayed Delivery Contract.
The principal amount of Underwritten Securities agreed to be purchased
by the several Underwriters pursuant to the applicable Terms Agreement shall be
reduced by the principal amount 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 principal
amount of Underwritten Securities to be purchased by all Underwriters shall be
the total amount of Underwritten Securities covered by the applicable Terms
Agreement, less the principal amount 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
principal amount of Underwritten Securities covered thereby and their terms not
otherwise specified in the Prospectus or the Indenture, the names of the
Underwriters participating in the offering and the principal amount of
Underwritten Securities which each severally has agreed to purchase, the names
of the Underwriters acting as co-managers in connection with the offering, the
price at which the Underwritten Securities are to be purchased by the
Underwriters from the Company, the initial public offering price, if any, the
selling concession and reallowance, if any, any delayed delivery arrangements,
and such other information as you and the Company deem appropriate in connection
with the offering of the Underwritten Securities; and the Company will promptly
transmit copies of the Prospectus Supplement to the Commission for filing
pursuant to Rule 424(b) of the 1933 Act Regulations and will furnish to the
Underwriters named therein as many copies of the Prospectus (including such
Prospectus Supplement) as you shall reasonably request. If the Company elects to
rely on Rule 434 under the 1933 Act Regulations, immediately following the
execution of the applicable Terms Agreement, the Company will prepare an
abbreviated term sheet that complies with the requirements of Rule 434 under the
1933 Act Regulations and will provide the Underwriters with copies of the form
of Rule 434 Prospectus, in such number as you shall reasonably request, and
promptly file or transmit for filing with the Commission the form of Prospectus
complying with Rule 434(c)(2) of the 1933 Act Regulations in accordance with
Rule 424(b) of the 1933 Act Regulations.
(b) The Company will notify you immediately, and if written notice is
requested by you, confirm such notice in writing as soon as reasonably
practicable, of (i) the effectiveness of any amendment to the Registration
Statement, (ii) the transmittal to the Commission for filing of any Prospectus
Supplement or other supplement or amendment to the Prospectus or any document to
be filed pursuant to the 1934 Act, (iii) the receipt of any comments from the
Commission, (iv) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, (v) any change in or withdrawal of the rating assigned
by a nationally recognized statistical rating organization to any long-term debt
securities of the Company or the public announcement by any nationally
recognized statistical rating organization that it has under surveillance or
review its rating of any long-term debt securities of the Company, and (vi) 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
such stop order and, if any stop order is issued, to obtain the lifting thereof
at the earliest possible moment.
12
(c) At any time when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities, the Company will give you notice of its intention to file or prepare
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus, whether pursuant to the 1933 Act, 1934 Act or otherwise
(including any revised prospectus which the Company proposes for use by the
Underwriters in connection with an offering of Underwritten Securities which
differs from the prospectus on file at the Commission at the time the
Registration Statement first becomes effective, whether or not such revised
prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act
Regulations, or any abbreviated term sheet prepared in reliance on Rule 434 of
the 1933 Act Regulations), and will furnish you with copies of any such
amendment or supplement or other documents proposed to be filed or used a
reasonable amount of time prior to such proposed filing or use, as the case may
be, and will not file any such amendment or supplement or other documents in a
form to which you or counsel for the Underwriters shall reasonably object.
(d) The Company will deliver to each Underwriter as many signed and
conformed copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) as such Underwriter reasonably requests.
(e) The Company will furnish to each Underwriter, from time to time
during the period when the Prospectus is required to be delivered under the 1933
Act or the 1934 Act in connection with sales of the Underwritten Securities,
such number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request for the purposes contemplated by the 1933
Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations.
(f) If at any time when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities any event shall occur or condition exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters or counsel for the
Company, to amend or supplement the Prospectus in order that the Prospectus will
not include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein not misleading in the
light of the circumstances existing at the time it is delivered to a purchaser,
or if it shall be necessary, in the opinion of either such counsel, at any such
time to amend or supplement the Registration Statement or the Prospectus in
order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, then the Company will promptly prepare and, subject to Section 3(c)
file with the Commission such amendment or supplement, whether by filing
documents pursuant to the 1933 Act, the 1934 Act or otherwise, as may be
necessary to correct such untrue statement or omission or to make the
Registration Statement and Prospectus comply with such requirements.
13
(g) The Company will endeavor, in cooperation with the Underwriters, to
qualify the Underwritten Securities and the shares of Common Stock or Preferred
Stock issuable upon conversion of the Underwritten Securities, if applicable,
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; and in each jurisdiction in which the Underwritten Securities
and the shares of Common Stock or Preferred Stock issuable upon conversion of
the Underwritten Securities, if applicable, 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 shares of
Common Stock or Preferred Stock issuable upon conversion of the Underwritten
Securities, if applicable; provided, however, that the Company shall not be
obligated to qualify as a foreign corporation in any jurisdiction where it is
not so qualified.
(h) With respect to each sale of Underwritten Securities, the Company
will make generally available to its security holders as soon as practicable,
but not later than 90 days after the close of the period covered thereby, an
earnings statement (in form complying with the provisions of Rule 158 of the
1933 Act Regulations) covering a twelve month period beginning not later than
the first day of the Company's fiscal quarter next following the "effective
date" (as defined in such Rule 158) of the Registration Statement.
(i) The Company will use its best efforts to meet the requirements to
qualify as a "real estate investment trust" under the Code for the taxable year
in which sales of the Underwritten Securities are to occur.
(j) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act or the 1934 Act in connection with sales of the
Underwritten Securities, will file all documents required to be filed with the
Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time
period prescribed by the 1934 Act and the 1934 Act Regulations.
(k) The Company will not, between the date of the applicable Terms
Agreement and the Closing Time with respect to the Underwritten Securities
covered thereby, without your prior written consent, which shall not be
unreasonably withheld, offer or sell, grant any option for the sale of, or enter
into any agreement to sell, any debt securities of the Company with a maturity
of more than one year (other than the Underwritten Securities which are to be
sold pursuant to such Terms Agreement), or if such Terms Agreement relates to
Underwritten Securities that are convertible into Common Stock or Preferred
Stock, any Common Stock or Preferred Stock or any security convertible into
Common Stock or Preferred Stock (except for Common Stock or Preferred Stock
issued pursuant to reservations, agreements, employee benefit plans, dividend
reinvestment plans, or employee and director stock option plans), except as may
otherwise be provided in the applicable Terms Agreement.
(l) If the Underwritten Securities are convertible into Common Stock or
Preferred Stock, 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 Stock, as the case may be, for the purpose of enabling the
Company to satisfy any obligation to issue such shares upon conversion of the
Underwritten Securities.
14
(m) If the Underwritten Securities are convertible into Common Stock or
Preferred Stock, the Company will use its best efforts to list shares of Common
Stock or Preferred Stock, as the case may be, issuable upon conversion of the
Underwritten Securities on the New York Stock Exchange, Inc. or such other
national exchange on which the Company's Common Stock or Preferred Stock, as the
case may be, is then listed.
Section 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement or the
applicable Terms Agreement, including (i) the printing and filing of the
Registration Statement as originally filed and of each amendment thereto, (ii)
the printing and filing of this Agreement and the applicable Terms Agreement,
(iii) the preparation, issuance and delivery of the Underwritten Securities to
the Underwriters, (iv) the fees and disbursements of the Company's counsel and
accountants, of the Trustee and its counsel and of any applicable calculation
agent or exchange rate agent, (v) the qualification of the Underwritten
Securities and the shares of Common Stock or Preferred Stock issuable upon
conversion of the Underwritten Securities, if applicable, 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 Indenture, (viii) any fees charged by nationally
recognized statistical rating organizations for the rating of the Underwritten
Securities, (ix) the fees and expenses, if any, incurred with respect to the
listing of the Underwritten Securities and the shares of Common Stock or
Preferred Stock issuable upon conversion of the Underwritten securities, if
applicable, on any national securities exchange, (x) the fees and expenses, if
any, incurred with respect to any filing with the National Association of
Securities Dealers, Inc., (xi) the cost of providing any CUSIP or other
identification numbers for the Underwritten Securities or the shares of Common
Stock or Preferred Stock issuable upon conversion of the Underwritten
Securities, if applicable, and (xii) the fees and expenses of any depositary in
connection with the Underwritten Securities.
If the applicable Terms Agreement is terminated by you in accordance
with the provisions of Section 5, or Section 9(b)(i), the Company shall
reimburse the Underwriters named in such Terms Agreement for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
Section 5. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase Underwritten Securities pursuant to
the applicable Terms Agreement are subject to the accuracy of the
representations and warranties of the Company herein contained, to the accuracy
of the statements of the Company's officers made in any certificate pursuant to
the provisions hereof, to the performance by the Company of all of its covenants
and other obligations hereunder, and to the following further conditions:
15
(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) the rating
assigned by any nationally recognized statistical rating organization to any
long-term debt securities of the Company as of the date of the applicable Terms
Agreement shall not have been lowered or withdrawn since such date nor shall any
such rating organization have publicly announced that it has any long-term debt
securities of the Company under surveillance or review, and (iii) there shall
not have come to your attention any facts that would cause you to believe that
the Prospectus, at the time it was required to be delivered to purchasers of the
Underwritten Securities, included an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in light of the circumstances existing at such time, not misleading.
(b) At Closing Time, you shall have received:
(1) The favorable opinion, dated as of the Closing Time, of
Xxxxxx & Xxxxxxx, counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(i) If applicable, the authorized, issued and
outstanding capital stock of the Company is as set forth in
the Prospectus under "Capitalization" (except for subsequent
issuances, if any, pursuant to reservations, agreements,
employee benefit plans, dividend reinvestment plans or
employee and director stock option plans referred to in the
Prospectus); and the outstanding capital stock of the Company
has been duly authorized, is 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.
(ii) When executed, authenticated and delivered
pursuant to the provisions of the Indenture and against
payment of the consideration therefor specified in the
applicable Terms Agreement or the Delayed Delivery Contracts,
if any, the Underwritten Securities will constitute valid and
legally binding obligations of the Company enforceable in
accordance with their terms; and a registered holder of the
Underwritten Securities is a beneficiary under the Indenture.
(iii) The shares of Common Stock or Preferred Stock
issuable upon conversion of the Underwritten Securities, if
applicable, have been duly and validly authorized and reserved
for issuance upon such conversion by all necessary corporate
action and such shares, when issued upon such conversion, will
be duly and validly issued and will be fully paid and
non-assessable, and the issuance of such shares upon such
conversion will not be subject to preemptive or other similar
rights arising by operation of law or, to the best of such
counsel's knowledge and information, otherwise.
(iv) The Indenture (assuming due authorization,
execution and delivery by the Company and the Trustee)
constitutes the valid and legally binding agreement of the
Company, enforceable in accordance with its terms.
16
(v) The Indenture has been duly qualified under the
1939 Act.
(vi) The Registration Statement has become effective
under the 1933 Act and, to the best of such counsel's
knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act or
proceedings therefor have been initiated or threatened by the
Commission.
(vii) 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 in, incorporated by reference in or omitted from the
Registration Statement or the Prospectus or with respect to
the Statement of Eligibility of the Trustee; and 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.
(viii) 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 or omitted
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.
(ix) The Underwritten Securities, the shares of
Common Stock or Preferred Stock issuable upon conversion of
the Underwritten Securities, if applicable, and the Indenture
conform in all material respects to the decriptions thereof
contained in the Prospectus.
(x) No authorization, approval or consent of any
court or governmental authority or agency is required under
any United States federal or New York State statute, rule or
regulation that has not been obtained in connection with the
execution and delivery of this Agreement and the issuance and
sale of the Underwritten Securities by the Company pursuant to
this Agreement, the applicable Terms Agreement or the
Indenture, except such as may be required under the 1933 Act,
the 1934 Act, the 1939 Act, and state securities laws or real
estate syndication laws.
(xi) The Company is not required to be registered
under the 1940 Act.
17
(xii) 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 proposed method of operation
will enable it to meet the requirements for qualification and
taxation as a "real estate investment trust" under the Code,
provided that such counsel's opinion as to this matter shall
be conditioned upon certain representations as to factual
matters made by the Company to such counsel as described
therein.
(xiii) The statements set forth (a) in the Prospectus
under the caption "Material Federal Income Tax Considerations
to Us of Our REIT Election" and (b) in the Prospectus
Supplement under the caption "Material Federal Income Tax
Consequences," insofar as they purport to summarize certain
provisions of the statutes or regulations referred to therein,
are accurate summaries in all material respects.
The opinions rendered in (ii) and (iv) 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; (ii) the effect of general principles of equity, whether enforcement
is considered in a proceeding in equity or at law, and the discretion of the
court before which any proceeding therefor may be brought; (iii) no opinion need
be rendered concerning the enforceability of the waiver of rights or defenses
contained in Section 514 of the Indenture; (iv) no opinion need be rendered with
respect to whether acceleration of any discount Underwritten Securities may
affect the collectibility of that portion of the stated principal amount thereof
which might be determined to constitute unearned interest thereon; (v) in the
case of Underwritten Securities denominated in a foreign currency or currency
unit, to provisions of law that require that a judgment for money damages
rendered by a court in the United States be expressed only in United States
dollars; and (vi) the unenforceability under certain circumstances under law or
court decisions of provisions providing for the indemnification of or
contribution to a party with respect to a liability where such indemnification
or contribution is contrary to public policy.
(2) The favorable opinion, dated as of the Closing Time, of
Xxxxxxx Xxxxx Xxxxxxx Xxxxxxxxx, LLP, Maryland counsel to the Company,
in form and substance satisfactory to counsel for the Underwriters, to
the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation under the laws of the State
of Maryland and is in good standing with the State Department
of Assessments and Taxation of Maryland.
(ii) The Company has corporate power and authority to
own, lease and operate its properties and to conduct its
business as described in the Prospectus.
(iii) This Agreement has been duly authorized,
executed and delivered by the Company.
(iv) The Indenture has been duly authorized, executed
and delivered by the Company.
18
(v) The Underwritten Securities, in the form(s)
certified by the Company as of the date hereof, have been duly
and validly authorized for issuance, offer and sale pursuant
to this Agreement.
(vi) No authorization, approval or consent of any
court or governmental authority or agency is required under
any Maryland state statute, rule or regulation that has not
been obtained in connection with the consummation by the
Company of the transactions contemplated by this Agreement or
the Indenture, except such as may be required under state
securities laws.
(3) The favorable opinion, dated as of the 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) The Company is duly qualified as a foreign
corporation to transact business and is in good standing in
each jurisdiction in which it owns or leases real property,
except where the failure to so qualify would not have a
material adverse effect on the condition, financial or
otherwise, or on the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as
one enterprise.
(ii) To the best of his knowledge and information,
there are no legal or governmental proceedings pending or
threatened which are required to be disclosed in the
Prospectus, other than those disclosed therein, and all
pending legal or governmental proceedings to which the Company
or any of its subsidiaries is a party or of which any of the
property of the Company or its subsidiaries is the subject
which are not described in the Prospectus, including ordinary
routine litigation incidental to the business, are, considered
in the aggregate, not material.
(iii) To the best of his knowledge and information,
there are no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to be
described or referred to in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration
Statement other than those described or referred to therein or
filed as exhibits thereto, the descriptions thereof or
references thereto are correct, and, to the best of his
knowledge and information, no default exists in the due
performance or observance of any material obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage (except as otherwise described in the
Prospectus), loan agreement, note, lease or other instrument
so described, referred to or filed which would have a material
adverse effect on the condition, financial or otherwise, or on
the earnings, business or business prospects of the Company
and its subsidiaries considered as one enterprise.
19
(iv) To the best of his knowledge and information,
the execution and delivery of this Agreement, the applicable
Terms Agreement and the Indenture and the consummation of the
transactions contemplated herein and therein and compliance by
the Company with its obligations hereunder and thereunder will
not conflict with or constitute a breach of, or default under,
or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any
of its subsidiaries pursuant to any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to
which the Company or any of its subsidiaries is a party or by
which it or any of them may be bound or to which any of the
property or assets of the Company or any of its subsidiaries
is subject, nor will such action result in violation of the
provisions of the charter or by-laws of the Company or any
applicable law, administrative regulation or administrative or
court order or decree.
(v) Each of the partnership and joint venture
agreements to which the Company or any of its subsidiaries is
a party, and which relates to real property described in the
Prospectus, has been duly authorized, executed and delivered
by such applicable party and constitutes the valid agreement
thereof, enforceable in accordance with its terms, except as
limited by bankruptcy and general equitable principles and the
execution, delivery and performance of any of such agreements
did not, at the time of execution and delivery, and does not
constitute a breach of, or default under, the charter or
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.
(vi) The Company, its subsidiaries and the Related
Entities hold title to the properties and assets described in
the Prospectus, subject only to the liens and encumbrances
securing indebtedness reflected in the Prospectus and such
other liens, encumbrances and matters of record which do not
materially and adversely affect the value of such properties
and assets considered in the aggregate.
(vii) Each Significant Subsidiary of the Company has
been duly incorporated and is validly existing as a
corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and, to
the best of his knowledge and information, is duly qualified
as a foreign corporation to transact business and is in good
standing in each jurisdiction in which it owns or leases real
property, except where the failure to so qualify would not
have a material adverse effect on the condition, financial or
otherwise, or on the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as
one enterprise; and all of the issued and outstanding capital
stock of each such Significant Subsidiary has been duly
authorized and validly issued, is fully paid and
non-assessable and, to the best of his knowledge and
information, is owned by the Company, directly or through
subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity, except
for security interests granted in respect of indebtedness of
the Company or any of its subsidiaries and described in the
Prospectus.
20
(4) The favorable opinion, dated as of the Closing Time, of
Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, in form
and substance satisfactory to the Underwriters.
(5) In giving their opinions required by subsections (b)(1)
and (b)(4), respectively, of this Section, Xxxxxx & Xxxxxxx and Xxxxxx
Xxxxxx Xxxxx & Wood LLP shall each additionally state that nothing has
come to their attention that would lead them to believe that the
Registration Statement or any amendment thereto, at the time it became
effective (or, if an amendment to the Registration Statement or an
Annual Report on Form 10-K has been filed by the Company with the
Commission subsequent to the effectiveness of the Registration
Statement, then at the time such amendment becomes effective or at the
time of the most recent filing of such Annual Report, as the case may
be) or at the date of the applicable Terms Agreement, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus or any amendment or
supplement thereto, at the date of the applicable Terms Agreement or at
the 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 Sidley Xxxxxx Xxxxx & Xxxx LLP
may rely, (1) as to matters involving the laws of the State of Maryland
upon the opinion of Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, LLP (or other
counsel reasonably satisfactory to counsel for the Underwriters in form
and substance satisfactory to counsel for the Underwriters, (2) as to
all matters of fact, upon certificates and written statements of
officers and employees of and accountants for the Company, and (3) as
to the qualification and good standing of the Company or any of its
subsidiaries to do business in any state or jurisdiction, upon
certificates of appropriate government officials or opinions of counsel
in such jurisdictions.
(c) At Closing Time, there shall not have been, since the date of the
applicable Terms Agreement or since the respective dates as of which information
is given in the Prospectus, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business; and you shall have
received a certificate of the Chief Executive Officer, the President or Vice
President and the chief financial officer or chief accounting officer of the
Company, dated as of such Closing Time, to the effect that (i) there has been no
such material adverse change and (ii) the representations and warranties in
Section 1 are true and correct with the same force and effect as though such
Closing Time were a Representation Date.
21
(d) At the time of execution of the applicable Terms Agreement, you
shall have received from PricewaterhouseCoopers LLP a letter dated such date, in
form and substance satisfactory to you, to the effect that (i) they are
independent accountants with respect to the Company within the meaning of the
1933 Act and the 1933 Act Regulations thereunder; (ii) it is their opinion that
the consolidated financial statements and financial statement schedules of the
Company and the historical summaries of revenue and certain operating expenses
for the properties related thereto included or incorporated by reference in the
Registration Statement and the Prospectus and audited by them and covered by
their opinions therein comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the 1933 Act Regulations;
(iii) they have performed limited procedures, not constituting an audit,
including a reading of the latest available unaudited interim consolidated
financial statements of the Company, a reading of the minute books of the
Company, inquiries of certain officials of the Company who have responsibility
for financial and accounting matters and such other inquiries and procedures as
may be specified in such letter, and on the basis of such limited review and
procedures nothing came to their attention that caused them to believe that (A)
any material modifications should be made to the unaudited financial statements
and financial statement schedules of the Company included or incorporated by
reference in the Registration Statement and the Prospectus for them to be in
conformity with generally accepted accounting principles, (B) the unaudited
financial statements and financial statement schedules of the Company included
or incorporated by reference in the Registration Statement and the Prospectus do
not comply as to form in all material respects with the applicable accounting
requirements of the 1934 Act as it relates to Form 10-Q and the 1934 Act
Regulations, (C) the unaudited operating data and balance sheet data of the
Company in the Registration Statement and the Prospectus under the caption
"Selected Consolidated Financial Data" were not determined on a basis
substantially consistent with that used in determining the corresponding amounts
in the audited financial statements included or incorporated by reference in the
Registration Statement and the Prospectus, (D) the unaudited pro forma condensed
financial statements included in or incorporated by reference in the Company's
Registration Statement, if any, do not comply as to form in all material
respects with the applicable accounting requirements of Rule 11-02 of Regulation
S-X under the 1933 Act or that the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of such statements or (E)
at a specified date not more than three days prior to the date of the applicable
Terms Agreement, there has been any change in the capital stock of the Company
or in the consolidated long-term debt of the Company or any decrease in the net
assets of the Company, as compared with the amounts shown in the most recent
consolidated balance sheet included or incorporated by reference in the
Registration Statement and the Prospectus or, during the period from the date of
the most recent consolidated statement of operations included or incorporated by
reference in the Registration Statement and the Prospectus to a specified date
not more than three days prior to the date of the applicable Terms Agreement,
there were any decreases, as compared with the corresponding period in the
preceding year, in consolidated revenues, or decrease in net income or net
income per share of the Company, except in all instances for changes, increases
or decreases which the Registration Statement and the Prospectus disclose have
occurred or may occur; and (iv) in addition to the audit referred to in their
opinions and the limited procedures referred to in clause (iii) above, they have
carried out certain specified procedures, not constituting an audit, with
respect to certain amounts, percentages and financial information which are
included or incorporated by reference in the Registration Statement and the
Prospectus and which are specified by you, and have found such amounts,
percentages and financial information to be in agreement with the relevant
accounting, financial and other records of the Company and its subsidiaries
identified in such letter.
22
(e) At Closing Time, you shall have received from
PricewaterhouseCoopers LLP a letter dated as of the Closing Time to the effect
that they reaffirm the statements made in the letter furnished pursuant to
subsection (d) of this Section, except that the "specified date" referred to
shall be a date not more than three days prior to such Closing Time.
(f) At the applicable 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 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 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 the
applicable 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
you shall have received:
(1) 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.
(2) 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)(1) and 5(b)(5) hereof.
(3) The favorable opinion of Xxxxxxx Xxxxx Xxxxxxx Ingersoll,
LLP, Maryland counsel to the Company, in form and substance
satisfactory to counsel for the Underwriters, dated such Date of
Delivery, relating to the Option Securities and otherwise substantially
to the same effect as the opinion required by Section 5(b)(2) hereof.
(4) 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 Section
5(b)(3) hereof.
(5) The favorable opinion of Sidley Xxxxxx Xxxxx & Xxxx LLP,
counsel for the Underwriters, dated such Date of Delivery, relating to
the Option Securities and otherwise to the same effect as the opinion
required by Sections 5(b)(4) and 5(b)(5) hereof.
23
(6) A letter from PricewaterhouseCoopers LLP, in form and
substance satisfactory to you and dated such Date of Delivery,
substantially the same in scope and substance as the letter furnished
to you pursuant to Section 5(d) hereof, except that the "specified
date" in the letter furnished pursuant to this Section 5(g)(6) shall be
a date not more than three days prior to such Date of Delivery.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, the applicable Terms Agreement
may be terminated by you by notice to the Company at any time at or prior to the
Closing Time, which notice shall be confirmed in writing by the Underwriters as
soon as reasonably practicable if so requested by the Company, and such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof.
Section 6. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the 1933 Act as follows:
(1) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the
information deemed to be part of the Registration Statement pursuant to
Rule 434 of the 1933 Act Regulations, if applicable, or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto) or the omission, or alleged
omission therefrom, of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(2) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission
referred to in subsection (1) above, or any such alleged untrue
statement or omission, if such settlement is effected with the written
consent of the Company; and
(3) against any and all expense whatsoever (including, the
fees and disbursements of counsel chosen by you), as incurred, which
was reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (1) or (2) above;
24
provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through you expressly for use in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) or made in reliance upon the
Trustee's Statement of Eligibility filed as an exhibit to the Registration
Statement; provided, further, that with respect to any preliminary prospectus,
such indemnity shall not inure to the benefit of any Underwriter (or the benefit
of any person controlling such Underwriter) if the person asserting any such
losses, liabilities, claims, damages or expenses purchased the Underwritten
Securities which are the subject thereof from such Underwriter and if such
person was not sent or given a copy of the Prospectus (excluding any documents
incorporated therein by reference) at or prior to confirmation of the sale of
such Underwritten Securities to such person in any case where such sending or
giving is required by the 1933 Act and the untrue statement or omission of a
material fact contained in such preliminary prospectus was corrected in the
Prospectus and the Prospectus was delivered to such Underwriter a reasonable
amount of time prior to the date of delivery of such confirmation.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act, against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a) of
this Section, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or
any amendment thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through you expressly
for use in the Registration Statement (or any amendment thereto) or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of such
action. If it so elects within a reasonable time after receipt of such notice,
an indemnifying party, jointly with any other indemnifying parties receiving
such notice, may assume the defense of such action with counsel chosen by it and
approved by the indemnified parties defendant in such action, unless such
indemnified parties reasonably object to such assumption on the ground that
there may be legal defenses available to them which are different from or in
addition to those available to such indemnifying party. If an indemnifying party
assumes the defense of such action, the indemnifying parties shall not be liable
for any fees and expenses of counsel for the indemnified parties incurred
thereafter in connection with such action. In no event shall the indemnifying
parties be liable for fees and expenses of more than one counsel (in addition to
any local counsel) separate from their own counsel for all indemnified parties
in connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written consent of
the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
25
Section 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company and the
Underwriters with respect to the offering of the Underwritten Securities shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by said indemnity agreement incurred by the Company and
one or more of the Underwriters in respect of such offering, as incurred, in
such proportions that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount appearing on the
cover page of the applicable Prospectus Supplement in respect of such offering
bears to the initial public offering price appearing thereon and the Company is
responsible for the balance; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Underwritten Securities
purchased by it pursuant to the applicable Terms Agreement and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay in respect of such losses,
liabilities, claims, damages and expenses. The Underwriters' obligation to
contribute pursuant to this Section 7 shall be several in proportion to their
respective underwriting commitments and not joint. For purposes of this Section
7, each person, if any, who controls an Underwriter within the meaning of
Section 15 of the 1933 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as the Company.
Section 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or the applicable Terms Agreement, or contained in certificates of
officers of the Company submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any termination of this Agreement or the
applicable Terms Agreement, or investigation made by or on behalf of any
Underwriter or any controlling person, or by or on behalf of the Company and
shall survive delivery of and payment for the Underwritten Securities.
26
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 applicable 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, business affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
there has occurred any material adverse change in the financial markets in the
United States or any outbreak or escalation of hostilities or other national or
international calamity or crisis, the effect of which is such as to make it, in
your judgment, impracticable or inadvisable to market the Underwritten
Securities or enforce contracts for the sale of the Underwritten Securities, or
(iii) trading in any of the securities of the Company has been suspended by the
Commission or the New York Stock Exchange, or if trading generally on either the
New York Stock Exchange, the American Stock Exchange or the Nasdaq National
Market has been suspended, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices for securities have been required, by either
of said exchanges or the Nasdaq National Market or by order of the Commission or
any other governmental authority, or if a general banking moratorium has been
declared by Federal, New York or Maryland authorities, or (iv) there has
occurred a material disruption in securities settlement or clearance services,
or (v) the rating assigned by any nationally recognized statistical rating
organization to any long-term debt securities of the Company as of the date of
the applicable Terms Agreement shall have been lowered or withdrawn since such
date or if any such rating organization shall have publicly announced that it
has any long-term debt securities of the Company under surveillance or review.
(c) In the event of any such termination, (x) the covenants set forth
in Section 3 with respect to any offering of Underwritten Securities shall
remain in effect so long as any Underwriter owns any such Underwritten
Securities purchased from the Company pursuant to the applicable Terms Agreement
and (y) the covenant set forth in Section 3(h) hereof, the provisions of Section
4 hereof, the indemnity and contribution agreements set forth in Sections 6 and
7 hereof, and the provisions of Sections 8 and 13 hereof shall remain in effect
Section 10. Default by one or More of the Underwriters. If one or more
of the Underwriters shall fail at the applicable 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:
27
(a) if the aggregate principal amount of Defaulted Securities does not
exceed 10% of the aggregate principal amount 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 aggregate principal amount of Defaulted Securities exceeds
10% of the aggregate principal amount of Underwritten Securities to be purchased
pursuant to such Terms Agreement, the applicable Terms Agreement shall terminate
without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default under this Agreement and
the applicable Terms Agreement.
In the event of any such default which does not result in a termination
of the applicable Terms Agreement, either you or the Company shall have the
right to postpone the applicable Closing Time for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
the Prospectus or in any other documents or arrangements.
Section 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to: Banc One Capital Markets, Inc., 0 Xxxx Xxx
Xxxxx, Xxxxx XX0-0000, Xxxxxxx, XX 00000, Attention: Structuring and Execution,
Facsimile: (000) 000-0000; and X.X. Xxxxxx Securities Inc., 000 Xxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Investment Grade Syndicate Desk, 8th
Floor, Facsimile (000) 000-0000; 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 to such Terms Agreement, and their respective
successors. Nothing expressed or mentioned in this Agreement or the applicable
Terms Agreement is intended or shall be construed to give any person, firm or
corporation, other than those referred to in Sections 6 and 7 and their heirs
and legal representatives, any legal or equitable right, remedy or claim under
or in respect of this Agreement or such Terms Agreement or any provision herein
or therein contained. This Agreement and the applicable Terms Agreement and all
conditions and provisions hereof and thereof are intended to be for the sole and
exclusive benefit of the parties hereto and thereto and their respective
successors and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Underwritten Securities from any Underwriter shall
be deemed to be a successor by reason merely of such purchase.
28
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.
29
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/ Xxxxx X. Xxxxx
---------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President-Treasurer
Confirmed and Accepted,
as of the date first above written:
BANC ONE CAPITAL MARKETS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Authorized Signatory
30
Exhibit A
KIMCO REALTY CORPORATION
(A MARYLAND CORPORATION)
[Title of Securities]
TERMS AGREEMENT
Dated: November , 2002
To: Kimco Realty Corporation
0000 Xxx Xxxx Xxxx Xxxx
Xxx Xxxx Xxxx, Xxx Xxxx 00000-0000
Attention: Chairman of the
Board of Directors
Ladies and Gentlemen:
We (the "Representative") understand that Kimco Realty Corporation, a
Maryland corporation (the "Company"), proposes to issue and sell $ aggregate
principal amount of its [Title of Debt Securities] (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 amounts of Underwritten
Securities set forth below opposite their respective names, and a proportionate
share of Option Securities (as defined in the Underwriting Agreement referred to
below) to the extent any are purchased, at the purchase price set forth below.
Principal Amount
of
Underwriter Underwritten Securities
Total -----------
$
===========
A-1
The Underwritten Securities shall have the following terms:
Title of Securities:
Currency:
Principal amount to be issued:
Current ratings: Xxxxx'x Investors Service, Inc.; Standard & Poor's
Ratings Services:
Interest rate or formula:
Interest payment dates:
Stated maturity date:
Redemption and/or repayment provisions:
Sinking fund requirements:
Number of Option Securities, if any, that may be purchased by the Underwriters:
Delayed Delivery Contracts: [authorized] [not authorized]
[Date of delivery:
Minimum contract:
Maximum aggregate principal amount:
Fee: %]
Initial public offering price: %, plus accrued interest, if any, or amortized
original issue discount, if any, from , 200_.
Purchase price: %, plus accrued interest, if any, or amortized original
issue discount, if any, from , 200_ (payable
in [same] [next] day funds).
Conversion provisions:
Form:
Other terms:
Closing time, date and location:
All the provisions contained in the document attached as Annex A hereto
entitled "Kimco Realty Corporation-Debt Securities-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.
A-2
Please accept this offer no later than o'clock P.M. (New York City
time) on by signing a copy of this Terms Agreement in the space set forth below
and returning the signed copy to us.
Very truly yours,
BANC ONE CAPITAL MARKETS, INC.
By:_________________________________
Acting on behalf of itself
and the other named Underwriters.
Accepted:
KIMCO REALTY CORPORATION
By:_________________________________
Name:
Title:
A-3
Exhibit B
KIMCO REALTY CORPORATION
(A MARYLAND CORPORATION)
[Title of Securities]
DELAYED DELIVERY CONTRACT
, 20__
Kimco Realty Corporation
0000 Xxx Xxxx Xxxx Xxxx
Xxx Xxxx Xxxx, Xxx Xxxx 00000-0000
Attention: Chairman of the
Board of Directors
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Kimco Realty Corporation
(the "Company"), and the Company agrees to sell to the undersigned on
____________, 20__ (the "Delivery Date"), _______________ principal amount of
the Company's [insert title of security] (the "Securities"), offered by the
Company's Prospectus dated ____________, 20__, as supplemented by its Prospectus
Supplement dated ____________, 20__, receipt of which is hereby acknowledged at
a purchase price of ___ % of the principal amount thereof, plus accrued interest
from _____________, 20__, to the Delivery Date, and on the further terms and
conditions set forth in this contract.
Payment for the Securities which the undersigned has agreed to purchase
on the Delivery Date shall be made to the Company or its order by certified or
official bank check in New York Clearing House funds at the office of
____________, on the Delivery Date, upon delivery to the undersigned of the
Securities to be purchased by the undersigned in definitive form and in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than five
full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date shall be subject only to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company, on or before ____________, 20__,
shall have sold to the Underwriters of the Securities (the "Underwriters") such
principal amount of the Securities as is to be sold to them pursuant to the
Terms Agreement dated ____________, 20__, between the Company and the
Underwriters. The obligation of the undersigned to take delivery of and make
payment for Securities shall not be affected by the failure of any purchaser to
take delivery of and make payments for Securities pursuant to other contracts
similar to this contract. The undersigned represents and warrants to you that
its investment in the Securities is not, as of the date hereof, prohibited under
the laws of any jurisdiction to which the undersigned is subject and which
govern such investment.
B-1
Promptly after completion of the sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to the
Company that all necessary corporate action for the due execution and delivery
of this contract and the payment for and purchase of the Securities has been
taken by it and no further authorization or approval of any governmental or
other regulatory authority is required for such execution, delivery, payment or
purchase, and that, upon acceptance hereof by the Company and mailing or
delivery of a copy as provided below, this contract will constitute a valid and
binding agreement of the undersigned in accordance with its terms.
This contract will inure to the benefit of and binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed Delivery
Contracts for an aggregate principal amount of Securities in excess of $________
and that the acceptance of any Delayed Delivery Contract is in the Company's
sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance on a copy hereof
and mail or deliver a signed copy hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such copy is so mailed or delivered.
B-2
This Agreement shall be governed by the laws of the State of New York
applicable to agreements made and to be performed in such State.
Yours very truly,
-----------------------------------
(Name of Purchaser)
By:_________________________________
(Title)
------------------------------------
------------------------------------
(Address)
Accepted as of the date
first above written.
KIMCO REALTY CORPORATION
By:________________________________
(Title)
PURCHASER-PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser
with whom details of delivery on the Delivery Date may be discussed are as
follows: (Please print.)
Telephone No.
(including
Name Area Code)
---- ------------
B-3
