ESSEX PROPERTY TRUST, INC 1,500,000 Shares Common Stock ($0.0001 par value per Share) Underwriting Agreement
ESSEX
PROPERTY TRUST, INC
1,500,000
Shares
Common
Stock
($0.0001
par value per Share)
Underwriting
Agreement
Underwriting
Agreement
May
3,
2007
UBS
Securities LLC
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000-0000
Ladies
and Gentlemen:
Essex
Property Trust,
Inc., a Maryland corporation (the “Company”),
proposes to issue and sell to the underwriters named in Schedule
A
annexed
hereto (the “Underwriters”),
for
whom you are acting as representative, an aggregate of 1,500,000 shares (the
“Firm
Shares”)
of
common stock, $0.0001 par value per share (the “Common
Stock”),
of
the Company. In addition, solely for the purpose of covering over-allotments,
the Company proposes to grant to the Underwriters the option to purchase from
the Company up to an additional 225,000 shares of Common Stock (the
“Additional
Shares”).
The
Firm Shares and the Additional Shares are hereinafter collectively sometimes
referred to as the “Shares.”
The
Shares are described in the Prospectus which is referred to below.
The
Company has
prepared and filed, in accordance with the provisions of the Securities Act
of
1933, as amended, and the rules and regulations thereunder (collectively, the
“Act”),
with
the Securities and Exchange Commission (the “Commission”)
a
registration statement on Form “S-3” (File No. 333-141726) under the Act (the
“registration
statement”),
including a prospectus, which registration statement incorporates by reference
documents which the Company has filed, or will file, in accordance with the
provisions of the Securities Exchange Act of 1934, as amended, and the rules
and
regulations thereunder (collectively, the “Exchange
Act”).
Such
registration statement has become effective under the Act.
Except
where the
context otherwise requires, “Registration
Statement,”
as
used herein, means the registration statement, as amended at the time of such
registration statement’s effectiveness for purposes of Section 11 of the Act, as
such section applies to the respective Underwriters (the “Effective
Time”),
including (i) all documents filed as a part thereof or incorporated or deemed
to
be incorporated by reference therein, (ii) any information contained or
incorporated by reference in a prospectus filed with the Commission pursuant
to
Rule 424(b) under the Act, to the extent such information is deemed, pursuant
to
Rule 430B or Rule 430C under the Act, to be part of the registration statement
at the Effective Time, and (iii) any registration statement filed to register
the offer and sale of Shares pursuant to Rule 462(b) under the Act.
The
Company has
furnished to you, for use by the Underwriters and by dealers in connection
with
the offering of the Shares, copies of one or more basic prospectus, and the
documents incorporated by reference therein, relating to the Shares. Except
where the context otherwise requires, “Basic
Prospectus,”
as
used herein, means any such basic prospectus on file with the Commission when
marketing efforts began and any basic prospectus furnished to you by the Company
and attached to or used with the Prospectus Supplement (as defined
below).
Except
where the
context otherwise requires, “Prospectus
Supplement,”
as
used herein, means the final prospectus supplement, relating to the Shares,
filed by the Company with the Commission pursuant to Rule 424(b) under the
Act
on or before the second business day after the date hereof (or such earlier
time
as may be required under the Act), in the form furnished by the Company to
you
for use by the Underwriters and by dealers in connection with the offering
of
the Shares.
Except
where the
context otherwise requires, “Prospectus,”
as
used herein, means the Prospectus Supplement together with the Basic Prospectus
attached to or used with the Prospectus Supplement.
“Permitted
Free Writing Prospectuses,”
as
used herein, means the documents listed on Schedule
B
attached
hereto and each “road show” (as defined in Rule 433 under the Act), if any,
related to the offering of the Shares contemplated hereby that is a “written
communication” (as defined in Rule 405 under the Act). The Underwriters have not
offered or sold and will not offer or sell, without the Company’s consent, any
Shares by means of any “free writing prospectus” (as defined in Rule 405 under
the Act) that is required to be filed by the Underwriters with the Commission
pursuant to Rule 433 under the Act, other than a Permitted Free Writing
Prospectus.
“Disclosure
Package,”
as
used herein, means any Basic Prospectus, in either case together with any
combination of one or more of the Permitted Free Writing Prospectuses, if
any.
Any
reference herein
to the registration statement, the Registration Statement, any Basic Prospectus,
the Prospectus Supplement, the Prospectus or any Permitted Free Writing
Prospectus shall be deemed to refer to and include the documents, if any,
incorporated by reference, or deemed to be incorporated by reference, therein
(the “Incorporated
Documents”),
including, unless the context otherwise requires, the documents, if any, filed
as exhibits to such Incorporated Documents. Any reference herein to the terms
“amend,”
“amendment”
or
“supplement”
with
respect to the Registration Statement, Basic Prospectus, the Prospectus
Supplement, the Prospectus or any Permitted Free Writing Prospectus shall be
deemed to refer to and include the filing of any document under the Exchange
Act
on or after the initial effective date of the Registration Statement, or the
date of Basic Prospectus, the Prospectus Supplement, the Prospectus or such
Permitted Free Writing Prospectus, as the case may be, and deemed to be
incorporated therein by reference.
As
used in this
Agreement, “business
day”
shall
mean a day on which the New York Stock Exchange (the “NYSE”)
is
open for trading. The terms “herein,” “hereof,” “hereto,” “hereinafter” and
similar terms, as used in this Agreement, shall in each case refer to this
Agreement as a whole and not to any particular section, paragraph, sentence
or
other subdivision of this Agreement. The term “or,” as used herein, is not
exclusive.
The
Company and the
Underwriters agree as follows:
1. Sale
and Purchase.
Upon
the basis of the representations and warranties and subject to the terms and
conditions herein set forth, the Company agrees to issue and sell to the
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respective
Underwriters and each of the Underwriters, severally and not jointly, agrees
to
purchase from the Company the number of Firm Shares set forth opposite the
name
of such Underwriter in Schedule
A
attached
hereto, subject to adjustment in accordance with Section 8
hereof”,
in each case at a purchase price of $127.97 per Share. The Company is advised
by
you that the Underwriters intend (i) to make a public offering of their
respective portions of the Firm Shares as soon after the effectiveness of this
Agreement as in your judgment is advisable and (ii) initially to offer the
Firm
Shares upon the terms set forth in the Prospectus. You may from time to time
increase or decrease the public offering price after the initial public offering
to such extent as you may determine.
In
addition, the
Company hereby grants to the several Underwriters the option (the “Over-Allotment
Option”)
to
purchase, and upon the basis of the representations and warranties and subject
to the terms and conditions herein set forth, the Underwriters shall have the
right to purchase, severally and not jointly, from the Company, ratably in
accordance with the number of Firm Shares to be purchased by each of them,
all
or a portion of the Additional Shares as may be necessary to cover
over-allotments made in connection with the offering of the Firm Shares, at
the
same purchase price per share to be paid by the Underwriters to the Company
for
the Firm Shares. The Over-Allotment Option may be exercised by UBS Securities
LLC (“UBS”)
on
behalf of the several Underwriters at any time and from time to time on or
before the thirtieth day following the date of the Prospectus Supplement, by
written notice to the Company. Such notice shall set forth the aggregate number
of Additional Shares as to which the Over-Allotment Option is being exercised
and the date and time when the Additional Shares are to be delivered (any such
date and time being herein referred to as an “additional
time of purchase”);
provided,
however,
that no
additional time of purchase shall be earlier than the “time of purchase” (as
defined below) nor earlier than the second business day after the date on which
the Over-Allotment Option shall have been exercised nor later than the tenth
business day after the date on which the Over-Allotment Option shall have been
exercised. The number of Additional Shares to be sold to each Underwriter shall
be the number which bears the same proportion to the aggregate number of
Additional Shares being purchased as the number of Firm Shares set forth
opposite the name of such Underwriter on Schedule
A
hereto
bears to the total number of Firm Shares (subject, in each case, to such
adjustment as UBS may determine to eliminate fractional shares), subject to
adjustment in accordance with Section 8
hereof.
2. Payment
and Delivery.
Payment
of the purchase price for the Firm Shares shall be made to the Company by
Federal Funds wire transfer against delivery of the certificates for the Firm
Shares to you through the facilities of The Depository Trust Company
(“DTC”)
for
the respective accounts of the Underwriters. Such payment and delivery shall
be
made at 10:00 A.M., New York City time, on May 9, 2007 (unless another time
shall be agreed to by you and the Company or unless postponed in accordance
with
the provisions of Section 8
hereof).
The time at which such payment and delivery are to be made is hereinafter
sometimes called the “time
of purchase.”
Electronic transfer of the Firm Shares shall be made to you at the time of
purchase in such names and in such denominations as you shall
specify.
Payment
of the
purchase price for the Additional Shares shall be made at the additional time
of
purchase in the same manner and at the same office as the payment for the Firm
Shares. Electronic transfer of the Additional Shares shall be made to you at
the
additional
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time
of
purchase in such names and in such denominations as you shall
specify.
Deliveries
of the
documents described in Section 6
hereof
with respect to the purchase of the Shares shall be made at the offices of
Xxxxx
& XxXxxxxx LLP, at Two Embarcadero Center, 11th Floor, San Francisco,
California, at 9:00 A.M., New York City time, on the date of the closing of
the
purchase of the Firm Shares or the Additional Shares, as the case may
be.
3. Representations
and Warranties of the Company.
The
Company represents and warrants to and agrees with each of the Underwriters
that:
(a) the
Registration Statement has heretofore become effective under the Act or, with
respect to any registration statement to be filed to register
the
offer
and
sale of Shares pursuant to Rule 462(b) under the Act, will be filed with the
Commission and become effective under the Act no later than
10:00 P.M.,
New
York City time, on the date of determination of the public offering price for
the Shares; no stop order of the Commission preventing or
suspending
the use of
Basic Prospectus, the Prospectus Supplement, the Prospectus or any Permitted
Free Writing Prospectus, or the effectiveness of
the
Registration
Statement, has been issued, and no proceedings for such purpose have been
instituted or, to the Company’s knowledge, are
contemplated
by the
Commission;
(b) the
Registration Statement complied when it became effective, complies as of the
date hereof and, as amended or supplemented, at the time of
purchase,
each
additional time of purchase, if any, and at all times during which a prospectus
is required by the Act to be delivered (whether physically
or
through compliance
with Rule 172 under the Act or any similar rule) in connection with any sale
of
Shares, will comply, in all material respects, with
the
requirements of
the Act; the conditions to the use of Form S-3 in connection with the offering
and sale of the Shares as contemplated hereby have
been
satisfied; the
Registration Statement constitutes an “automatic shelf registration statement”
(as defined in Rule 405 under the Act); the Company
has
not received,
from the Commission, a notice, pursuant to Rule 401(g)(2), of objection to
the
use of the automatic shelf registration statement form; as
of
the determination
date applicable to the Registration Statement (and any amendment thereof) and
the offering contemplated hereby, the Company is a
“well-known
seasoned
issuer” as defined in Rule 405 under the Act; the Registration Statement meets,
and the offering and sale of the Shares as
contemplated
hereby
complies with, the requirements of Rule 415 under the Act (including, without
limitation, Rule 415(a)(5) under the Act); the
Registration
Statement did not, as of the Effective Time, 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; each Basic Prospectus
complied, at the time it was filed with the Commission,
and
complies as of
the date hereof, in all material respects with the requirements of the Act;
at
no time during the period that begins on the earlier of the
date
of such Basic
Prospectus and the date such Basic Prospectus was filed with the Commission
and
ends at the time of purchase did or will any Basic
Prospectus,
as then
amended or supplemented, include an untrue statement of a material fact or
omit
to state
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a
material fact
necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and at
no
time during such
period did or will any Basic
Prospectus, as then amended or supplemented, together with any combination
of
one or more of the
then
issued Permitted
Free Writing Prospectuses, if any, 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; each Basic Prospectus complied or will
comply,
as of its
date and the date it was or will be filed with the Commission, complies as
of
the date hereof (if filed with the Commission on or prior to
the
date hereof) and,
at the time of purchase, each additional time of purchase, if any, and at all
times during which a prospectus is required by the Act
to
be delivered
(whether physically or through compliance with Rule 172 under the Act or any
similar rule) in connection with any sale of Shares, will
comply,
in all
material respects, with the requirements of the Act; each of the Prospectus
Supplement and the Prospectus will comply, as of the date that
it
is filed with the
Commission, the date of the Prospectus Supplement, the time of purchase, each
additional time of purchase, if any, and at all times
during
which a
prospectus is required by the Act to be delivered (whether physically or through
compliance with Rule 172 under the Act or any similar
rule)
in connection
with any sale of Shares, in all material respects, with the requirements of
the
Act (in the case of the Prospectus, including, without
limitation,
Section
10(a) of the Act); at no time during the period that begins on the earlier
of
the date of the Prospectus Supplement and the date the
Prospectus
Supplement
is filed with the Commission and ends at the later of the time of purchase,
the
latest additional time of purchase, if any, and the
end
of the period
during which a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the
Act
or any similar
rule) in connection with any sale of Shares did or will any Prospectus
Supplement or the Prospectus, as then amended or
supplemented,
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; at
no
time during the period that begins on the date of such Permitted Free Writing
Prospectus
and ends
at the time of purchase did or will any Permitted Free
Writing Prospectus 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 Company makes no representation or warranty
in this Section 3(b)
with
respect to any statement contained in the
Registration
Statement, any Basic Prospectus, the Prospectus or any Permitted
Free Writing Prospectus in reliance upon and in conformity with
information
concerning an Underwriter and furnished in writing by or on behalf
of
such Underwriter through you to the Company expressly for use in
the
Registration
Statement, such Basic Prospectus, the Prospectus or such Permitted
Free Writing Prospectus; each Incorporated Document, at the time
such
document was
filed with the Commission or at the time such document
became effective, as applicable, complied, in all material respects, with the
requirements
of the
Exchange Act and did 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;
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(c) prior
to the
execution of this Agreement, the Company has not, directly or indirectly,
offered or sold any Shares by means of any
“prospectus”
(within
the meaning of the Act) or used any “prospectus” (within the meaning of the Act)
in connection with the offer or sale of the
Shares,
in each case
other than the Basic Prospectuses and the Permitted Free Writing Prospectuses,
if any; the Company has not, directly or indirectly,
prepared,
used or
referred to any Permitted Free Writing Prospectus except in compliance with
Rule
163 or with Rules 164 and 433 under the Act;
assuming
that such
Permitted Free Writing Prospectus is so sent or given after the Registration
Statement was filed with the Commission (and after such
Permitted
Free
Writing Prospectus was, if required pursuant to Rule 433(d) under the Act,
filed
with the Commission), the sending or giving, by any
Underwriter,
of any
Permitted Free Writing Prospectus will satisfy the provisions of Rule 164 and
Rule 433 (without reliance on subsections (b), (c) and
(d)
of Rule 164); the
conditions set forth in one or more of subclauses (i) through (iv), inclusive,
of Rule 433(b)(1) under the Act are satisfied, and the
registration
statement relating to the offering of the Shares contemplated hereby, as
initially filed with the Commission, includes a prospectus that, other
than
by reason of
Rule 433 or Rule 431 under the Act, satisfies the requirements of Section 10
of
the Act; neither the Company nor the Underwriters are
disqualified,
by
reason of subsection (f) or (g) of Rule 164 under the Act, from using, in
connection with the offer and sale of the Shares, “free writing
prospectuses”
(as
defined in Rule 405 under the Act) pursuant to Rules 164 and 433 under the
Act;
the Company is not an “ineligible issuer” (as defined
in
Rule 405 under the
Act) as of the eligibility determination date for purposes of Rules 164 and
433
under the Act with respect to the offering of the
Shares
contemplated
by the Registration Statement; the parties hereto agree and understand that
the
content of any and all “road shows” (as defined in
Rule
433 under the
Act) related to the offering of the Shares contemplated hereby is solely the
property of the Company;
(d) the
Company (i) has a class of securities registered pursuant to section 12(b)
of
the Act and is required to file reports pursuant to section 15(d)
of
the Exchange Act;
(ii) has been subject to the requirements of section 12 or 15(d) of the Exchange
Act and has filed all the material required to be filed
pursuant
to sections
13, 14, or 15(d) for a period of at least thirty-six calendar months immediately
preceding the filing of the registration statement; (iii)
has
filed in a timely
manner all reports required to be filed pursuant to sections 13, 14, or 15(d)
of
the Exchange Act during the twelve calendar months
and
any portion of a
month immediately preceding the filing of the registration statement and, if
the
registrant has used (during the twelve calendar
months
and any
portion of a month immediately preceding the filing of the registration
statement) Rule 12b-25(b) under the Act with respect to a report
or
a portion of a
report, that report or portion thereof has actually been filed within the time
period prescribed by said rule; (iv) neither the Company nor
any
of its
consolidated subsidiaries have, since the end of the last fiscal year for which
certified financial statements of the registrant and its
consolidated
subsidiaries were included in a report filed pursuant to section 13(a) or 15(d)
of the Exchange act: (x) failed to pay any dividend or sinking
fund
installment on
preferred stock; or (y) defaulted (A) on any installment or installments on
indebtedness for borrowed money, or (B) on any rental on
one
or more long term
leases, which defaults in the aggregate are material to the financial position
of the registrant and its
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consolidated
and
unconsolidated subsidiaries, taken as a whole; and (v) the aggregate market
value (computed by use of the price at which the
Company’s
Common
Stock was last sold, or the average of the bid and asked prices of such stock,
as of a date within 60 days prior to the date of filing
of
the registration
statement) of the voting stock held by non-affiliates of the Company is $150
million or more;
(e) the
Company has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of the State of Maryland,
has
its
principal business operations in the United States, is in good standing with
the
State Department of Assessments and Taxation of Maryland and
has corporate
power and authority to own, lease and operate its properties and to conduct
its
business as described in the Registration Statement, the
Basic Prospectus,
the Prospectus and the Permitted Free Writing Prospectuses, if any, to execute
and deliver this Agreement and to issue, sell and
deliver
the
Shares
as
contemplated herein; Essex Portfolio, L.P. a California limited partnership
(the
“Operating
Partnership”),
is
validly existing as a
limited partnership
in good standing under the laws of the jurisdiction of its organization with
the
power to own, lease and operate its properties and
conduct its
business in all material respects as described under the headings “Item 1
Business” and “Item 2 Properties” in the Operating Partnership’s
Annual Report
on
Form 10-K for the year ended December 31, 2006; the Company and each of its
subsidiaries (as defined under the Act, collectively,
the “Subsidiaries”)
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 for such jurisdictions (other than the State of
California)
where the
failure to so qualify or to be in good standing would not, individually or
in
the aggregate, either (i) have a material adverse effect
on
the business,
properties, financial condition, results of operations or prospects of the
Company and its Subsidiaries taken as a whole, (ii) prevent or
materially
interfere
with consummation of the transactions contemplated hereby or (iii) result in
the
delisting of shares of Common Stock from the NYSE
(the
occurrence of
any such effect or any such prevention or interference or any such result
described in the foregoing clauses (i), (ii) and (iii) being
herein
referred to as
a “Material
Adverse Effect”).
All
of the issued and outstanding capital stock or partnership interests of each
of
the Company’s
Subsidiaries
has been
duly authorized and validly issued, is fully paid and nonassessable, has been
issued in compliance with federal and state
securities
laws, and,
except as described in the Registration Statement, the Basic Prospectus, the
Prospectus and the Permitted Free Writing
Prospectuses,
is
owned, directly or indirectly, by the Company free and clear of any security
interest, mortgage, pledge, lien, encumbrance or claim.
None
of such
outstanding capital stock or partnership interests was issued in violation
of
any preemptive rights, rights of first refusal or other similar
rights
to subscribe
for or purchase securities of the respective issuing entity. The Company does
not own or control, directly or indirectly, any
corporation,
association or other entity other than the subsidiaries listed in Exhibit 21.1
to the Company’s Annual Report on Form 10-K for the fiscal
year
ended December
31, 2006 and other than (i) those subsidiaries not required to be listed on
Exhibit 21.1 by Item 601 of Regulation S-K under the
Exchange
Act and (ii)
those subsidiaries formed since December 31, 2006 and listed on Schedule
C
hereto.
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(f) as
of the
date of this Agreement, the Company has an authorized and outstanding
capitalization as set forth in the sections of the Registration
Statement,
the Basic
Prospectuses and the Prospectus entitled “Capitalization” and “Description of
Capital Stock” (and any similar sections or
information,
if any,
contained in any Permitted Free Writing Prospectus), and, as of the time of
purchase and any additional time of purchase, as the case
may
be, the Company
shall have an authorized and outstanding capitalization as set forth in the
sections of the Registration Statement, the Basic
Prospectuses
and the
Prospectus entitled “Capitalization” and “Description of Capital Stock” (and any
similar sections or information, if any, contained
in
any Permitted Free
Writing Prospectus) (subject, in each case, to the issuance of shares of Common
Stock upon exercise of stock options and
warrants
disclosed as
outstanding in the Registration Statement (excluding the exhibits thereto),
each
Basic Prospectus and the Prospectus and the
grant
of options
under existing stock option plans described in the Registration Statement
(excluding the exhibits thereto), each Basic Prospectus and
the
Prospectus); all
of the issued and outstanding shares of capital stock, including the Common
Stock, of the Company have been duly authorized and
validly
issued, are
fully paid and non-assessable, have been issued in compliance with federal
and
state securities laws and the certificates for the
Shares
are in due and
proper form. None of the outstanding shares of Common Stock were issued in
violation of any preemptive rights, rights of first
refusal
or other
similar rights to subscribe for or purchase securities of the Company; there
are
no authorized or outstanding options, warrants,
preemptive
rights,
rights of first refusal or other rights to purchase, or equity or debt
securities convertible into or exchangeable or exercisable for, any
capital
stock of the
Company or any of its Subsidiaries other than those accurately described in
all
material respects in the Registration Statement, the
Basic
Prospectuses
and the Prospectus. The description of the Company’s stock option, stock bonus
and other stock plans or arrangements, and the
options
or other
rights granted thereunder, set forth in the Registration Statement, the Basic
Prospectuses and the Prospectus accurately and fairly
presents
in all
material respects the information required to be shown with respect to such
plans, arrangements, options and rights; the Shares are duly
listed,
and admitted
and authorized for trading, subject to official notice of issuance, on the
New
York Stock Exchange (the “NYSE”);
all
of the issued
and
outstanding
partnership interests of the Operating Partnership have been duly authorized
and
issued in accordance with the partnership agreement;
(g) this
Agreement has been duly authorized, executed and delivered by, and is a valid
and binding agreement of, the Company, enforceable in
accordance
with its
terms, except as rights to indemnification hereunder may be limited by
applicable law and except as the enforcement hereof may be
limited
by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights and remedies of creditors or by
general
equitable
principles;
(h) the
Shares have been duly and validly authorized and, when issued and delivered
against payment therefor as provided herein, will be duly
and validly
issued, fully paid and non-assessable and free of statutory and contractual
preemptive rights, resale rights, rights of first refusal and similar
rights;
the Shares,
when issued and delivered against payment therefor as provided herein, will
be
free of any restriction upon
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the
voting or
transfer thereof,
except for the limitations described in the Registration Statement, the Basic
Prospectus, the Prospectus and the Permitted
Free
Writing
Prospectuses,
pursuant to the Company’s charter or bylaws; the rights (the “Rights”),
if
any, evidenced by the Shares to the extent
provided
in the
Rights
Agreement dated as of November 11, 1998, as amended as of December 13, 2000
and
February 28, 2002 (the “Rights
Agreement”),
between
the
Company
and BankBoston N.A. as rights agent, have been duly authorized and when issued
in accordance with the terms thereof will be
validly
issued;
(i) neither
the
Company nor any of its Subsidiaries is in violation of its charter or by-laws
or
is in default (or, with the giving of notice or lapse of
time, would
be
in default) (“Default”)
under
any indenture, mortgage, loan or credit agreement, note, contract, franchise,
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 (each, an “Existing
Instrument”),
except for such Defaults as would not, individually or in the aggregate,
result
in a
Material
Adverse Effect. The Company’s execution, delivery and performance of this
Agreement, the issuance and sale of the Shares and the
consummation
of the
transactions contemplated hereby and thereby and by the Registration Statement,
the Basic Prospectus, the Prospectus or any
Permitted
Free
Writing Prospectus, if any, (i) have been duly authorized by all necessary
corporate action and will not result in any violation of the
provisions
of the
charter or by-laws of the Company or any of its Subsidiaries, (ii) 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,
or require the
consent of any other party to, any Existing Instrument, except for such
conflicts, breaches, Defaults, liens, charges or encumbrances as
would
not,
individually or in the aggregate, result in a Material Adverse Effect and (iii)
will not result in any violation of any law, administrative
regulation
or
administrative or court decree applicable to the Company or any subsidiary.
No
consent, approval, authorization or other order of, or
registration
or
filing with, any court or other governmental or regulatory authority or agency,
is required for the Company’s execution, delivery and
performance
of this
Agreement, the issuance and sale of the Shares and the consummation of the
transactions contemplated hereby and thereby and by
the
Registration
Statement, the Basic Prospectus, the Prospectus or any Permitted Free Writing
Prospectus, if any, except such as have been obtained
or
made by the
Company and are in full force and effect under the Act, and applicable state
securities or blue sky laws.
(j) except
as
expressly set forth in the Registration Statement, the Basic Prospectus, the
Prospectus or any Permitted Free Writing Prospectus, if
any, (i)
no
person has the right, contractual or otherwise, to cause the Company to issue
or
sell to it any shares of Common Stock or shares of any other
capital
stock or
other equity interests of the Company, (ii) no person has any preemptive rights,
resale rights, rights of first refusal or other rights to
purchase
any shares
of Common Stock or shares of any other capital stock of or other equity
interests in the Company and (iii) no person has the right
to
act as an
underwriter or as a financial advisor to the Company in connection with the
offer and
-9-
sale
of the Shares,
in the case of each of the foregoing clauses (i), (ii) and (iii), whether as
a
result of the sale of the Shares as contemplated hereby or
otherwise;
no person
has the right, contractual or otherwise, to cause the Company to register under
the Act any shares of Common Stock or shares of
any
other capital
stock of or other equity interests the Company, or to include any such shares
or
interests in the Registration Statement or the offering
contemplated
hereby;
(k) except
as
otherwise disclosed in the Registration Statement, the Basic Prospectus, the
Prospectus or any Permitted Free Writing Prospectus, if
any,
subsequent to
the respective dates as of which information is given in the Prospectus: (i)
there has been no material adverse change, or any
development
that
could have a reasonable possibility of resulting in a material adverse change,
in the condition, financial or otherwise, or in the
earnings,
business,
operations or prospects, whether or not arising from transactions in the
ordinary course of business, of the Company and its
Subsidiaries,
considered as one entity (any such change is called a “Material
Adverse Change”);
(ii)
the Company and its Subsidiaries, considered as
one
entity, have not
incurred any material liability or obligation, indirect, direct or contingent,
not in the ordinary course of business nor entered into
any
material
transaction or agreement not in the ordinary course of business; and (iii)
there
has been no dividend or distribution of any kind declared,
paid
or made by the
Company or, except for dividends paid to the Company or other Subsidiaries,
any
of its subsidiaries on any class of capital stock or
repurchase
or
redemption by the Company or any of its Subsidiaries of any class of capital
stock;
(l) KPMG
LLP, who
have expressed their opinion with respect to the financial statements (which
term as used in this Agreement includes the
related
notes
thereto) for the years ended December 31, 2004, 2005 and 2006 and Schedule
III
included or incorporated by reference in the Prospectus,
are independent
registered public or certified public accountants as required by the Securities
Act and the Exchange Act, and by the rules of the Public
Company
Accounting
Oversight Board.
(m) the
financial
statements included or incorporated by reference in the Registration Statement,
the Basic Prospectus, the Prospectus and the
Permitted
Free
Writing Prospectuses, if any, together with the related notes and schedules,
present fairly the consolidated financial position of the
Company
and its
Subsidiaries as of and at the dates indicated and the results of their
operations and cash flows for the periods specified. Schedule III
included
or
incorporated by reference in the Registration Statement, the Basic Prospectus
and the Prospectus presents fairly the information required to
be
stated
therein. Such financial statements and schedule have been prepared in conformity
with generally accepted accounting principles as applied in
the
United
States applied on a consistent basis throughout the periods involved, except
as
may be expressly stated in the related notes thereto. No
other
financial
statements or supporting schedules are required to be included or incorporated
by reference in the Registration Statement, the Basic
Prospectus
and
the
Prospectus. The financial data set forth or incorporated by reference in the
Registration Statement, the Basic Prospectus, the
Prospectus
or any
Permitted
Free Writing Prospectus, if any, including under the caption “Selected Financial
Data,” fairly present the information set
forth
therein on a
basis consistent
with that of the audited
-10-
financial
statements
contained, incorporated or deemed to be incorporated in the Registration
Statement, the Basic Prospectus and the Prospectus. The
ratios
of earnings to fixed charges set forth in Exhibit 12.1 to the Company’s Annual
Report on Form 10-K for the fiscal year ended December 31, 2006
have
been
calculated in compliance with Item 503(d) of Regulation S-K under the
Act.
(n) the
Company
and its Subsidiaries do not have any material liabilities or obligations, direct
or contingent (including any off-balance sheet
obligations),
not
disclosed in the Registration Statement, the Basic Prospectus, the Prospectus
or
any Permitted Free Writing Prospectus, if any; except
as
disclosed in the
Registration Statement, the Basic Prospectus, the Prospectus or any Permitted
Free Writing Prospectus, if any, neither the Company
nor
any of its
Subsidiaries is, together with its “related parties,” the “primary beneficiary”
of any “variable interest entity” (as such terms are used in
Financial
Accounting
Standards Board Interpretation No. 46); and all disclosures contained in the
Registration Statement, the Basic Prospectus, the
Prospectus
or any
Permitted Free Writing Prospectus, if any, including the documents incorporated
by reference therein, regarding “non-GAAP
financial
measures”
(as such term is defined by the rules and regulations of the Commission) comply
with Regulation G of the “Exchange Act” and Item
10
of the Regulation
S-K under the Act, to the extent applicable;
(o) there
are no
legal or governmental actions, suits or proceedings pending or, to the best
of
the Company’s knowledge, threatened (i) against or
affecting
the Company
or any of its Subsidiaries, (ii) which has as the subject thereof any officer
or
director of, or property owned or leased by, the
Company
or any of its
Subsidiaries or (iii) relating to environmental or discrimination matters,
where
in any such case (A) there is a reasonable
possibility
that such
action, suit or proceeding might be determined adversely to the Company or
such
subsidiary and (B) any such action, suit or
proceeding,
if so
determined adversely, would result in a Material Adverse Change or would prevent
or materially interfere with consummation of the
transactions
contemplated hereby;
(p) the
Company and each Subsidiary possess such valid and current certificates,
authorizations or permits issued by the appropriate state, federal or
foreign
regulatory
agencies or bodies necessary to conduct their respective businesses, other
than
those the failure to possess or own would not result
in
a Material Adverse
Effect, and neither the Company nor any subsidiary has received any notice
of
proceedings relating to the revocation or
modification
of, or
non-compliance with, any such certificate, authorization or permit which,
individually or in the aggregate, if the subject of an
unfavorable
decision,
ruling or finding, could result in a Material Adverse Change;
(q) except
as
disclosed in the Registration Statement, the Basic Prospectus, the Prospectus
or
any Permitted Free Writing Prospectuses, the
Company
and each of
its Subsidiaries has good and marketable title to all the properties and assets
reflected as owned in the financial statements
referred
to in
Section 3(m) above (or elsewhere in the Registration Statement, the Basic
Prospectus, the Prospectus or any Permitted Free Writing
Prospectus,
if any),
in each case free and clear of any security interests,
-11-
mortgages,
liens,
encumbrances, equities, claims and other defects, except such as do not
materially and adversely affect the value of such property and
do
not materially
interfere with the use made or proposed to be made of such property by the
Company or such subsidiary. The real property,
improvements,
equipment and personal property held under lease by the Company or any
subsidiary are held under valid and enforceable leases, with
such
exceptions as
are not material and do not materially interfere with the use made or proposed
to be made of such real property, improvements,
equipment
or personal
property by the Company or such subsidiary;
(r) the
Company and its Subsidiaries have filed all necessary federal, state and foreign
income, property and franchise tax returns and have paid all
taxes
required to be
paid by any of them and, if due and payable, any related or similar assessment,
fine or penalty levied against any of them except as
may
be being
contested in good faith and by appropriate proceedings. The Company has made
adequate charges, accruals and reserves in the
applicable
financial
statements referred to in Section 3(m) above in respect of all federal, state
and foreign income, property and franchise taxes for all
periods
as to which
the tax liability of the Company or any of its consolidated subsidiaries has
not
been finally determined;
(s) commencing
with the Company’s taxable year beginning January 1, 1994, the Company has been
organized and has operated in conformity
with
the
requirements for qualification as a “real estate investment trust,” and its
organization and proposed method of operation will enable it to meet
the
requirements
for the qualification and taxation as a “real estate investment trust” under the
Internal Revenue Code of 1986, as amended (the
“Code”);
(t) the
Company
has been advised of the rules and requirements under the Investment Company
Act
of 1940, as amended (the “Investment
Company
Act”).
The Company is not and, after giving effect to the offering and sale of the
Shares and the application of the proceeds thereof as
described
in the
Registration
Statement, the Basic Prospectus, the Prospectus or any Permitted Free Writing
Prospectus, if any, will not be an
“investment
company”
within
the meaning of Investment Company Act and will conduct its business in a manner
so that it will not become subject to
the
Investment
Company Act;
(u) except
as
otherwise described in the Registration Statement, the Basic Prospectus, the
Prospectus or any Permitted Free Writing Prospectus, if
any,
each of the
Company and its Subsidiaries are insured by insurers of recognized financial
responsibility with policies in such amounts and with such
deductibles
and
covering such risks as are generally deemed prudent and customary for the
business for which it is engaged including, but not limited
to,
policies covering
real and personal property owned or leased by the Company and its Subsidiaries
against theft, damage, destruction, acts of
vandalism
and
earthquakes. The Company has no reason to believe that it or any subsidiary
will
not be able (i) to renew its existing insurance coverage
as
and when such
policies expire or (ii) to obtain comparable coverage from similar institutions
as may be necessary or appropriate to conduct its
business
as now
conducted and at a cost that
-12-
would
not result in a
Material Adverse Change;
(v) the
Company has not taken and will not take, directly or indirectly, any action
designed to or that might be expected to cause or result in
stabilization
or
manipulation of the price of any security of the Company to facilitate the
sale
or resale of the Shares;
(w) all
legal or
governmental proceedings, affiliate transactions, off-balance sheet transactions
(including, without limitation, transactions related
to,
and
the
existence of, “variable interest entities” within the meaning of Financial
Accounting Standards Board Interpretation No. 46), contracts,
licenses,
agreements,
properties, leases or documents of a character required to be described in
the
Registration Statement, the Basic Prospectus, the
Prospectus
or
any
Permitted Free Writing Prospectus, if any, or any Incorporated Document or
to be
filed as an exhibit to any Incorporated Document
have
been so
described
or filed as required;
(x) neither
the Company nor any of its Subsidiaries nor, to the best of the Company’s
knowledge, any employee or agent of the Company or any
Subsidiary,
has made
any contribution or other payment to any official of, or candidate for, any
federal, state or foreign office in violation of any law or
of
the character
required to be disclosed in the Registration Statement, the Basic Prospectus
or
the Prospectus;
(y) on
or
before the time of purchase, the Company shall have obtained for the benefit
of
the Underwriters the agreement (a “Lock-Up
Agreement”), in
the
form set forth as Exhibit
A
hereto,
of each of its directors and “officers” (within the meaning of Rule 16a-1(f)
under the Act);
(z) neither
the Company nor any of its Subsidiaries is engaged in any unfair labor practice;
except as disclosed in the Registration Statement, the
Basic
Prospectus, the
Prospectus or any Permitted Free Writing Prospectus, if any, and except for
matters which would not, individually or in the
aggregate,
have a
reasonable possibility of resulting in a Material Adverse Effect, (i) there
is
(A) no unfair labor practice complaint pending or, to either
Issuer’s
knowledge
after due inquiry, threatened against the Company or any of its Subsidiaries
before the National Labor Relations Board, and no
grievance
or
arbitration proceeding arising out of or under collective bargaining agreements
is pending or threatened, (B) no strike, labor dispute,
slowdown
or stoppage
pending or, to the Company’s knowledge after due inquiry, threatened against the
Company or any of its Subsidiaries and (C) no
union
representation
dispute currently existing concerning the employees of the Company or any of
its
Subsidiaries, and (ii) to the Company’s
knowledge
after due
inquiry, (A) no union organizing activities are currently taking place
concerning the employees of the Company or any of its
Subsidiaries
and (B)
there has been no violation of any federal, state, local or foreign law relating
to discrimination in the hiring, promotion or pay of
employees,
any
applicable wage or hour laws or any provision of the Employee Retirement Income
Security Act of 1974 (“ERISA”) or the rules and
regulations
promulgated thereunder concerning the employees of the Company or any of its
Subsidiaries;
-13-
(aa) neither
the Company nor any of its Subsidiaries has sustained since the date of the
last
audited financial statements incorporated by
reference
in
the
Registration Statement, the Basic Prospectus, the Prospectus or any Permitted
Free Writing Prospectus, if any, any material loss or
interference
with
its
respective business from fire, explosion, flood or other calamity, whether
or
not covered by insurance, or from any labor dispute or
court
or governmental
action, order or decree;
(bb) neither
the Company nor any of its Subsidiaries has sent or received any communication
regarding termination of, or intent not to renew, any
of
the
contracts or agreements referred to or described in the Registration Statement,
the Basic Prospectus, the Prospectus, any Permitted Free Writing
Prospectus,
if any,
or any Incorporated Document, or filed as an exhibit to any Incorporated
Document, and no such termination or non-renewal has
been
threatened by
the Company or any subsidiary or, to the Company’s knowledge after due inquiry,
any other party to any such contract or
agreement,
except, in
each case, for any such terminations or non-renewals that would not,
individually or in the aggregate, result in a Material Adverse
Change;
(cc) the
Company and each of its Subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (i)
transactions
are
executed in accordance with management’s general or specific authorization; (ii)
transactions are recorded as necessary to permit
preparation
of
financial statements in conformity with generally accepted accounting principles
as applied in the United States and to maintain
accountability
for
assets; (iii) access to assets is permitted only in accordance with management’s
general or specific authorization; and (iv) the
recorded
accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences;
(dd) the
Company has established and maintains and evaluates “disclosure controls and
procedures” (as such term is defined in Rule 13a-15 and
15d-15
under the
Exchange Act) and “internal control over financial reporting” (as such term is
defined in Rule 13a-15 and 15d-15 under the Exchange
Act);
such disclosure
controls and procedures are designed to ensure that material information
relating to the Company, including its consolidated
subsidiaries,
is made
known to the Company’s Chief Executive Officer and its Chief Financial Officer
by others within those entities, and such disclosure
controls
and
procedures are effective to perform the functions for which they were
established; the Company’s independent auditors and the Audit
Committee
of the
Board of Directors of the Company have been advised of: (i) all significant
deficiencies in the design or operation of internal controls
which
could adversely
affect the Company’s ability to record, process, summarize, and report financial
data; and (ii) all fraud, whether or not material,
that
involves
management or other employees who have a role in the Company’s internal
controls; any material weaknesses in internal controls have
been
identified for
the Company’s auditors; since the date of the most recent evaluation of such
disclosure controls and procedures, there have been no
significant
changes
in internal controls or in other factors that could significantly affect
internal controls, including any corrective actions with regard to
significant
deficiencies and material
-14-
weaknesses;
the
principal executive officers (or their equivalents) and principal financial
officers (or their equivalents) of the Company have made all
certifications
required by the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”) and any
related rules and regulations promulgated by the
Commission,
and the
statements contained in any such certification are complete and correct; the
Company, its Subsidiaries and the Company’s
directors
and
officers are each in compliance in all material respects with all applicable
effective provisions of the Xxxxxxxx-Xxxxx Act and the rules and
regulations
of the
Commission and the NYSE promulgated thereunder;
(ee) the
Company has provided you true, correct and complete copies of all documentation
pertaining to any extension of credit in the form of a
personal
loan made,
directly or indirectly, by the Company or any of its Subsidiaries to any
director or executive officer of the Company, or to any family
member
or affiliate
of any director or executive officer of the Company; and on or after July 30,
2002, the Company has not, directly or indirectly,
including
through any
of its Subsidiaries: (i) extended credit, arranged to extend credit, or renewed
any extension of credit, in the form of a personal loan,
to
or for any
director or executive officer of the Company, or to or for any family member
or
affiliate of any director or executive officer of the Company;
or
(ii) made any
material modification, including any renewal thereof, to any term of any
personal loan to any director or executive officer of the
Company,
or any
family member or affiliate of any director or executive officer, which loan
was
outstanding on July 30, 2002;
(ff) all
statistical or market-related data included in the Registration Statement,
the
Basic Prospectus, the Prospectus, any Permitted Free Writing
Prospectus,
if any,
or any Incorporated Document are based on or derived from sources that the
Company believes to be reliable and accurate, and the
Company
has obtained
the written consent to the use of such data from such sources to the extent
required;
(gg) except
as
otherwise disclosed in the Registration Statement, the Basic Prospectus, the
Prospectus or any Permitted Free Writing Prospectus,
if
any,
and
except as would not have a Material Adverse Effect: (i) all properties and
assets described in the Registration Statement, the Basic
Prospectus,
the
Prospectus or any Permitted Free Writing Prospectus, if any, 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 Registration Statement, the Basic Prospectus
or
the Prospectus are disclosed therein; (iv) neither the
Company,
nor any of
its Subsidiaries or, to the
-15-
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 no event has occurred or
condition
exists
which, but for the passage of time or the giving of notice, or both, would
constitute a default
under any of such leases; (v) no tenant
under
any of the
leases pursuant to which any of the Company, or its Subsidiaries or, to the
knowledge of
the
Company, Related Entities leases its
properties
has an
option or right of first refusal to purchase the premises demised under such
lease; (vi) each of
the
properties of any of the Company or
its
Subsidiaries or,
to the knowledge of the Company, Related Entities complies with all applicable
codes and zoning laws and regulations; and (vii)
neither
the Company
nor any of its Subsidiaries has knowledge of any pending or threatened
condemnation, zoning change or other proceeding or
action
that will in
any manner affect the size of, use of, improvements on, construction on, or
access to the properties of any of the Company, or its
Subsidiaries
or
Related Entities;
(hh) title
insurance in favor of the mortgagee or the Company, its Subsidiaries and/or
their Related Entities is maintained with respect to each
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
Change;
(ii) the
mortgages and deeds of trust encumbering the properties and assets described
in
the Registration Statement, the Basic Prospectus, the
Prospectus
or any
Permitted Free Writing Prospectus, if any, are not convertible nor does the
Company, or its Subsidiaries hold a participating interest
therein;
(jj) 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 Registration Statement, the Basic Prospectus, the Prospectus or any
Permitted Free Writing Prospectus, if any, has been duly
authorized,
executed
and delivered by such applicable party and constitutes the valid agreement
thereof, enforceable in accordance with its terms,
except
as limited by
(a) the effect of bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to or
affecting
the rights
or remedies of creditors or (b) the effect of general principles of equity,
whether enforcement is considered in a proceeding in equity
or
at law, and the
discretion of the court before which any proceeding therefor may be brought,
and
the execution, delivery and performance of any of
such
agreements did
not, at the time of execution and delivery, and does not constitute a breach
of,
or default under, the charter or bylaws of such party
or
any material
contract, lease or other instrument to which such party is a party or by which
its properties may be bound or any law, administrative
regulation
or
administrative or court order or decree, except for such breaches or defaults
that would not result in a Material Adverse Change;
(kk) except
as
otherwise described in the Registration Statement, the Basic Prospectus, the
Prospectus or any Permitted Free Writing Prospectus,
if
any,
the
-16-
Company
has no
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 the Company, any of its
Subsidiaries 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 or otherwise require
disclosure
in the
Registration Statement, the Basic Prospectus or the Prospectus; 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, at the time of
purchase
and any
additional time of purchase, it has no knowledge of any material failure to
comply with any applicable foreign, local, state and federal
environmental
laws,
regulations, ordinances and administrative and judicial orders relating to
the
generation, recycling, reuse, sale, storage, handling,
transport
and
disposal of any Hazardous Materials.
(ll) except
as
otherwise described in the Registration Statement, the Basic Prospectus, the
Prospectus or any Permitted Free Writing Prospectus, if
any,
and except as
would not, individually or in the aggregate, result in a Material Adverse Effect
or otherwise require disclosure in the Registration
Statement,
the Basic
Prospectus, the Prospectus or any Permitted Free Writing Prospectus, if any,
(i)
neither the Company nor any of its Subsidiaries is
in
violation of any
federal, state, local or foreign law or regulation relating to pollution or
protection of human health or the environment (including,
without
limitation,
ambient air, surface water, groundwater, land surface or subsurface strata)
or
wildlife, including without limitation, laws and
regulations
relating
to emissions, discharges, releases or threatened releases of chemicals,
pollutants, contaminants, wastes, toxic substances,
hazardous
substances,
petroleum and petroleum products (collectively, “Materials
of Environmental Concern”),
or
otherwise relating to the
manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of Materials of Environment Concern (collectively,
“Environmental
Laws”),
which
violation includes, but is not limited to, noncompliance with any permits or
other governmental authorizations required
for
the operation of
the business of the Company or its Subsidiaries under applicable Environmental
Laws, or noncompliance with the terms and
conditions
thereof,
nor has the Company or any of its Subsidiaries received any written
communication, whether from a governmental authority, citizens
group,
employee or
otherwise, that alleges that the Company or any of its Subsidiaries is in
violation of any Environmental Law; (ii) there is no claim,
action
or cause of
action filed with a court or governmental authority, no investigation with
respect to which the Company has received written notice,
and
no written notice
by any person or entity alleging potential liability for investigatory costs,
cleanup costs, governmental responses costs, natural
resources
damages,
property damages, personal injuries, attorneys’ fees or penalties arising out
of, based on or resulting from the presence, or release
into
the environment,
of any Material of Environmental Concern at any location owned, leased or
operated by the Company or any of its Subsidiaries,
now
or in the past
(collectively, “Environmental
Claims”),
pending or, to the best of the Company’s knowledge, threatened against the
Company or any
of
its Subsidiaries
or any person or entity whose
-17-
liability
for any
Environmental Claim the Company or any of its Subsidiaries has retained or
assumed either contractually or by operation of law; and (iii)
to
the best of the
Company’s knowledge, there are no activities, circumstances, conditions or
events that reasonably could result in a material violation
of
any Environmental
Law;
(mm) the
description set forth under the caption “Environmental Matters” in Part 1A of
the Company’s Annual Report on Form 10-K for the year
ended
December 31,
2006 accurately describes the Company’s investigation of the compliance of its
properties with Environmental Laws. On the basis
of
such review and
the amount of its established reserves, the Company has reasonably concluded
that such associated costs and liabilities would not,
individually
or in
the aggregate, result in a Material Adverse Change or otherwise require
disclosure in the Registration Statement, the Basic Prospectus,
the
Prospectus or any
Permitted Free Writing Prospectus, if any;
(nn) except
pursuant to this Agreement, there is no broker, finder or other party that
is
entitled to receive from the Company any brokerage or
finder’s
fee or other
fee or commission as a result of any transactions contemplated by this
Agreement;
(oo) the
Company has not been advised, and has no reason to believe, that it and each
of
its Subsidiaries are not conducting business in
compliance
with all
applicable laws, rules and regulations of the jurisdictions in which it is
conducting business, except where failure to be so in
compliance
would not
result in a Material Adverse Change;
(pp) no
subsidiary of the Company is currently prohibited, directly or indirectly,
from
paying any dividends to the Company, from making any
other
distribution
on such subsidiary’s capital stock, from repaying to the Company any loans or
advances to such subsidiary from the Company or
from transferring
any of such subsidiary’s property or assets to the Company or any other
subsidiary of the Company, except as described in the
Registration
Statement, the Basic Prospectus, the Prospectus or any Permitted Free Writing
Prospectus, if any; and
(qq) the
Company is in material compliance with the rules of the NYSE, including, without
limitation, the requirements for continued listing of the
Common
Stock on the
NYSE, and there are no actions, suits or proceedings pending, threatened or,
to
the Company’s knowledge, contemplated, and
the
Company has not
received any notice from the NYSE, regarding the revocation of such listing
or
otherwise regarding the delisting of shares of
Common
Stock from the
NYSE.
In
addition, any
certificate signed by any officer of the Company or any of the Subsidiaries
and
delivered to the Underwriters or counsel for the Underwriters in connection
with
the offering of the Shares shall be deemed to be a representation and warranty
by the Company, as to matters covered thereby, to each Underwriter.
4. Certain
Covenants of the Company.
The
Company hereby agrees:
(a) to
furnish
such information as may be required and otherwise to cooperate
-18-
in
qualifying the
Shares for offering and sale under the securities or blue sky laws of such
states or other jurisdictions as you may designate and to
maintain
such
qualifications in effect so long as you may request for the distribution of
the
Shares; provided,
however,
that
the Company shall not be
required
to qualify
as a foreign corporation or to consent to the service of process under the
laws
of any such jurisdiction (except service of process
with
respect to the
offering and sale of the Shares); and to promptly advise you of the receipt
by
the Company of any notification with respect to the
suspension
of the
qualification of the Shares for offer or sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose;
(b) to
make
available to the Underwriters in New York City, as soon as practicable after
this Agreement becomes effective, and thereafter from
time
to time to
furnish to the Underwriters, as many copies of the Prospectus (or of the
Prospectus as amended or supplemented if the Company shall
have
made any
amendments or supplements thereto after the effective date of the Registration
Statement) as the Underwriters may request for the
purposes
contemplated
by the Act; in case any Underwriter is required to deliver (whether physically
or through compliance with Rule 172 under the
Act
or any similar
rule), in connection with the sale of the Shares, a prospectus after the
nine-month period referred to in Section 10(a)(3) of the Act, or
after
the time a
post-effective amendment to the Registration Statement is required pursuant
to
Item 512(a) of Regulation S-K under the Act, the
Company
will prepare,
at its expense, promptly upon request such amendment or amendments to the
Registration Statement and the Prospectus as may
be
necessary to
permit compliance with the requirements of Section 10(a)(3) of the Act or Item
512(a) of Regulation S-K under the Act, as the case may
be;
(c) if,
at
the time this Agreement is executed and delivered, it is necessary or
appropriate for a post-effective amendment to the Registration
Statement,
or a
Registration Statement under Rule 462(b) under the Act, to be filed with the
Commission and become effective before the Shares may be
sold,
the Company
will use its best efforts to cause such post-effective amendment or such
Registration Statement to be filed and become effective, and
will
pay any
applicable fees in accordance with the Act, as soon as possible; and the Company
will advise you promptly and, if requested by you, will
confirm
such advice
in writing, (i) when such post-effective amendment or such Registration
Statement has become effective, and (ii) if Rule 430A under
the
Act is used, when
the Prospectus is filed with the Commission pursuant to Rule 424(b) under the
Act (which the Company agrees to file in a timely
manner
in accordance
with such Rules);
(d) if,
at
any time during the period when a prospectus is required by the Act to be
delivered (whether physically or through compliance with
Rule
172 under the
Act or any similar rule) in connection with any sale of Shares, the Registration
Statement shall cease to comply with the requirements
of
the Act with
respect to eligibility for the use of the form on which the Registration
Statement was filed with the Commission or the Registration
Statement
shall cease
to be an “automatic shelf registration statement” (as defined in Rule 405 under
the Act) or the Company shall have received, from
the
Commission, a
notice, pursuant to Rule 401(g)(2), of objection to the use of the form on
-19-
which
the
Registration Statement was filed with the Commission, to (i) promptly notify
you, (ii) promptly file with the Commission a new registration
statement
under the
Act, relating to the Shares, or a post-effective amendment to the Registration
Statement, which new registration statement or post-
effective
amendment
shall comply with the requirements of the Act and shall be in a form
satisfactory to you, (iii) use its best efforts to cause such new
registration
statement or post-effective amendment to become effective under the Act as
soon
as practicable, (iv) promptly notify you of such
effectiveness
and (v)
take all other action necessary or appropriate to permit the public offering
and
sale of the Shares to continue as contemplated in
the
Prospectus; all
references herein to the Registration Statement shall be deemed to include
each
such new registration statement or post-effective
amendment,
if
any;
(e) if
the
third anniversary of the initial effective date of the Registration Statement
(within the meaning of Rule 415(a)(5) under the Act) shall
occur
at any time
during the period when a prospectus is required by the Act to be delivered
(whether physically or through compliance with Rule 172
under
the Act or any
similar rule) in connection with any sale of Shares, to file with the
Commission, prior to such third anniversary, a new registration
statement
under the
Act relating to the Shares, which new registration statement shall comply with
the requirements of the Act (including, without
limitation,
Rule
415(a)(6) under the Act) and shall be in a form satisfactory to you; such new
registration statement shall constitute an “automatic shelf
registration
statement” (as defined in Rule 405 under the Act); provided,
however,
that if
the Company is not then eligible to file an “automatic shelf
registration
statement” (as defined in Rule 405 under the Act), then such new registration
statement need not constitute an “automatic shelf registration
statement”
(as
defined in Rule 405 under the Act), but the Company shall use its best efforts
to cause such new registration statement to become
effective
under the
Act as soon as practicable, but in any event within 180 days after such third
anniversary and promptly notify you of such
effectiveness;
the
Company shall take all other action necessary or appropriate to permit the
public offering and sale of the Shares to continue as
contemplated
in the
Prospectus; all references herein to the Registration Statement shall be deemed
to include each such new registration statement, if
any;
(f) if,
at
any time during the period when a prospectus is required by the Act to be
delivered (whether physically or through compliance with
Rule
172 under the
Act or any similar rule) to advise you promptly, confirming such advice in
writing, of any request by the Commission for amendments
or
supplements to the
Registration Statement, any Basic Prospectus, the Prospectus or any Permitted
Free Writing Prospectus or for additional
information
with
respect thereto, or of notice of institution of proceedings for, or the entry
of
a stop order, suspending the effectiveness of the
Registration
Statement and, if the Commission should enter a stop order suspending the
effectiveness of the Registration Statement, to use its best
efforts
to obtain the
lifting or removal of such order as soon as possible; if, at any time during
the
period when a prospectus is required by the Act to be
delivered
(whether
physically or through compliance with Rule 172 under the Act or any similar
rule) to advise you promptly of any proposal to amend
or
supplement the
Registration Statement, any Basic Prospectus or the Prospectus, and to provide
you and Underwriters’ counsel copies of any such
-20-
documents
for review
and comment a reasonable amount of time prior to any proposed filing and to
file
no such amendment or supplement to which you
shall
object in
writing;
(g) subject
to Section 4(f)
hereof,
to file promptly all reports and documents and any preliminary or definitive
proxy or information statement
required
to be filed
by the Company with the Commission in order to comply with the Exchange Act
for
so long as a prospectus is required by the Act to
be
delivered (whether
physically or through compliance with Rule 172 under the Act or any similar
rule) in connection with any sale of Shares; and to
provide
you, for your
review and comment, with a copy of such reports and statements and other
documents to be filed by the Company pursuant to
Section
13, 14 or
15(d) of the Exchange Act during such period a reasonable amount of time prior
to any proposed filing, and to file no such report,
statement
or document
to which you shall have objected in writing; and to promptly notify you of
such
filing;
(h) to
pay
the fees applicable to the Registration Statement in connection with the
offering of the Shares within the time required by Rule 456
(b)(1)(i)
under the
Act (without reliance on the proviso to Rule 456(b)(1)(i) under the Act) and
in
compliance with Rule 456(b) and Rule 457(r) under the
Act;
(i) to
advise
the Underwriters promptly of the happening of any event within the period during
which a prospectus is required by the Act to
be
delivered (whether
physically or through compliance with Rule 172 under the Act or any similar
rule) in connection with any sale of Shares, which
event
could require
the making of any change in the Prospectus then being used so that the
Prospectus would 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 are
made,
not misleading,
and to advise the Underwriters promptly if, during such period, it shall become
necessary to amend or supplement the Prospectus
to
cause the
Prospectus to comply with the requirements of the Act, and, in each case, during
such time, subject to Section 5(f) hereof, to prepare and
furnish,
at the
Company’s expense, to the Underwriters promptly such amendments or supplements
to such Prospectus as may be necessary to reflect
any
such change or to
effect such compliance;
(j) to
make
generally available to its security holders, and to deliver to you, an earnings
statement of the Company (which will satisfy the
provisions
of Section
11(a) of the Act) covering a period of twelve months beginning after the
effective date of the Registration Statement (as defined in
Rule
158(c) under the
Act) as soon as is reasonably practicable after the termination of such
twelve-month period but in any case not later than May 10,
2008;
(k) to
furnish to you two copies of the Registration Statement, as initially filed
with
the Commission, and of all amendments thereto (including
all
exhibits thereto
and documents incorporated by reference therein) and sufficient copies of the
foregoing (other than exhibits) for distribution of a
copy
to each of the
other Underwriters;
(l) to
furnish to you as early as practicable prior to the time of purchase and
-21-
any
additional time
of purchase, as the case may be, but not later than two business days prior
thereto, a copy of the latest available unaudited interim
and
monthly
consolidated financial statements, if any, of the Company and the Subsidiaries
which have been read by the Company’s independent
registered
public
accountants, as stated in their letter to be furnished pursuant to Section
6(c)
hereof;
(m) to
apply
the net proceeds from the sale of the Shares in the manner set forth under
the
caption “Use of proceeds” in the Prospectus
Supplement;
(n) to
pay
all costs, expenses, fees and taxes in connection with (i) the preparation
and
filing of the Registration Statement, each Basic
Prospectus,
the Prospectus Supplement, the Prospectus, each Permitted Free Writing
Prospectus and any amendments or supplements thereto, and the
printing
and
furnishing of copies of each thereof to the Underwriters and to dealers
(including costs of mailing and shipment), (ii) the registration, issue,
sale
and delivery of
the Shares including any stock or transfer taxes and stamp or similar duties
payable upon the sale, issuance or delivery of the
Shares
to the
Underwriters, (iii) the producing, word processing and/or printing of this
Agreement, any Agreement Among Underwriters, any dealer
agreements,
any
Powers of Attorney and any closing documents (including compilations thereof)
and the reproduction and/or printing and furnishing
of
copies of each
thereof to the Underwriters and (except closing documents) to dealers (including
costs of mailing and shipment), (iv) the qualification
of
the Shares for
offering and sale under state or foreign laws and the determination of their
eligibility for investment under state or foreign law
(including
the legal
fees and filing fees and other disbursements of counsel for the Underwriters)
and the printing and furnishing of copies of any blue
sky
surveys or legal
investment surveys to the Underwriters and to dealers, (v) any listing of the
Shares on any securities exchange or qualification of
the
Shares for
quotation on the NYSE and any registration thereof under the Exchange Act,
(vi)
any filing for review of the public offering of the Shares
by
the National
Association of Securities Dealers, Inc. (the “NASD”),
including the legal fees and filing fees and other disbursements of counsel
to
the
Underwriters
relating
to NASD matters, (vii) the fees and disbursements of any transfer agent or
registrar for the Shares, (viii) the costs and expenses of
the
Company relating
to presentations or meetings undertaken in connection with the marketing of
the
offering and sale of the Shares to prospective
investors
and the
Underwriters’ sales forces, including, without limitation, expenses associated
with the production of road show slides and graphics,
fees
and expenses of
any consultants engaged in connection with the road show presentations, travel,
lodging and other expenses incurred by the
officers
of the
Company and any such consultants, and the cost of any aircraft chartered in
connection with the road show, and (ix) the performance of
the
Company’s other
obligations hereunder;
(o) to
comply
with Rule 433(d) under the Act (without reliance on Rule 164(b) under the Act)
and with Rule 433(g) under the Act;
(p) beginning
on the date hereof and ending on, and including, the date that is 60 days after
the date of the Prospectus Supplement (the
“Lock-Up
Period”),
without the
-22-
prior
written consent
of UBS, not to (i) issue, sell, offer to sell, contract or agree to sell,
hypothecate, pledge, grant any option to purchase or otherwise
dispose
of or agree
to dispose of, directly or indirectly, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent
position
within the
meaning of Section 16 of the Exchange Act and the rules and regulations of
the
Commission promulgated thereunder, with respect
to,
any Common Stock
or any other securities of the Company that are substantially similar to Common
Stock, or any securities convertible into or
exchangeable
or
exercisable for, or any warrants or other rights to purchase, the foregoing,
(ii) file or cause to become effective a registration statement
under
the
Act
relating to the offer and sale of any Common Stock or any other securities
of
the Company that are substantially similar to Common Stock,
or
any securities
convertible into or exchangeable or exercisable for, or any warrants or other
rights to purchase, the foregoing, (iii) enter into any swap
or
other arrangement
that transfers to another, in whole or in part, any of the economic consequences
of ownership of Common Stock or any other
securities
of the
Company that are substantially similar to Common Stock, or any securities
convertible into or exchangeable or exercisable for, or any
warrants
or other
rights to purchase, the foregoing, whether any such transaction is to be settled
by delivery of Common Stock or such other securities,
in
cash or otherwise
or (iv) publicly announce an intention to effect any transaction specified
in
clause (i), (ii) or (iii), except, in each case, for (A) the
registration
of the
offer and sale of the Shares as contemplated by this Agreement, (B) issuances
of
Common Stock upon the exercise of options or
warrants
disclosed as
outstanding in the Registration Statement (excluding the exhibits thereto),
each
Basic Prospectus and the Prospectus, (C) the
issuance
of employee
stock options not exercisable during the Lock-Up Period pursuant to stock option
plans described in the Registration Statement
(excluding
the
exhibits thereto), each Basic Prospectus and the Prospectus, (D) the issuance
of
Series Z-1 Incentive Units, which are not exchangeable
into
Common Stock
during the Lock-Up Period; (E) shares of Common Stock issuable upon the exchange
of partnership units in the Operating
Partnership
outstanding as of date of this Agreement; and (F) the issuance of partnership
units in the Operating Partnership or in other partnerships
and
such units are
exchangeable for shares of Common Stock so long as the units are issued to
acquire additional real property and the units may not be
exchanged
for shares
of Common Stock before the expiration of the Lock-Up Period;
(q) except
with respect to the Company’s previously announced upcoming earnings release and
earnings conference call, prior to the time of
purchase
or any
additional time of purchase, as the case may be, to issue no press release
or
other communication directly or indirectly and hold no
press
conferences
with respect to the Company or any Subsidiary, the financial condition, results
of operations, business, properties, assets, or
liabilities
of the
Company or any Subsidiary, or the offering of the Shares, without your prior
consent;
(r) not,
at
any time at or after the execution of this Agreement, to, directly or
indirectly, offer or sell any Shares by means of any
“prospectus”
(within
the meaning of the Act), or use any “prospectus” (within the meaning of the Act)
in connection with the offer or sale of the
Shares,
in each case
other than the Prospectus;
-23-
(s) not
to,
and to cause the Subsidiaries not to, take, directly or indirectly, any action
designed, or which will constitute, or has constituted, or
might
reasonably be
expected to cause or result in the stabilization or manipulation of the price
of
any security of the Company to facilitate the sale or
resale
of the
Shares;
(t) to
use
its best efforts to cause the Shares to be listed on the NYSE and to maintain
the listing of the Common Stock, including the Shares,
on
the NYSE;
and
(u) to
maintain a transfer agent and, if necessary under the jurisdiction of
incorporation of the Company, a registrar for the Common Stock.
5. Reimbursement
of Underwriters’ Expenses.
If the
Shares are not delivered for any reason other than the termination of this
Agreement pursuant to the fifth paragraph of Section 8
hereof
or the default by one or more of the Underwriters in its or their respective
obligations hereunder, the Company shall, in addition to paying the amounts
described in Section 4(n) hereof, reimburse the Underwriters for all of their
out-of-pocket expenses, including the fees and disbursements of their
counsel.
6. Conditions
of Underwriters’ Obligations.
The
several obligations of the Underwriters hereunder are subject to the accuracy
of
the representations and warranties on the part of the Company on the date
hereof, at the time of purchase and, if applicable, at the additional time
of
purchase, the performance by the Company of its obligations hereunder and to
the
following additional conditions precedent:
(a) The
Company shall furnish to you at the time of purchase and, if applicable, at
the
additional time of purchase, an opinion of Xxxxx &
XxXxxxxx,
LLP,
counsel for the Company, addressed to the Underwriters, and dated the time
of
purchase or the additional time of purchase, as the case
may
be, with executed
copies for each of the other Underwriters, and in form and substance
satisfactory to UBS, in the form set forth in Exhibit
B
hereto.
As
to all matters of
Maryland law, Xxxxx & XxXxxxxx LLP may rely without independent verification
upon an opinion of Xxxxxxx LLP; provided a copy
of
the opinion is
furnished to the Underwriter and Xxxxx & XxXxxxxx LLP states that the
Underwriter and such counsel are justified in relying upon
such
opinion.
(b) The
Company shall furnish to you at the time of purchase and, if applicable, at
the
additional time of purchase, an opinion of Xxxxxx Xxxxxx,
General
Counsel of
the Company, addressed to the Underwriters, and dated the time of purchase
or
the additional time of purchase, as the case may be,
with
executed copies
for each of the other Underwriters, and in form and substance satisfactory
to
UBS, in the form set forth in Exhibit
C
hereto.
(c) You
shall
have received from KPMG LLP letters dated, respectively, the date of this
Agreement, the date of the Prospectus Supplement,
the
time of purchase
and, if applicable, the additional time of purchase, and addressed to the
Underwriters (with executed copies for each of the
Underwriters)
in the
forms satisfactory to UBS, which
-24-
letters
shall cover,
without limitation, the various financial disclosures contained in the
Registration
Statement, the Basic Prospectuses, the Prospectus
and
the Permitted
Free Writing Prospectuses, if any.
(d) You
shall
have received at the time of purchase and, if applicable, at the additional
time
of purchase, the favorable opinion of Xxxxx Xxxx &
Xxxxxxxx,
counsel for
the Underwriters, dated the time of purchase or the additional time of purchase,
as the case may be, in form and substance
reasonably
satisfactory to UBS.
(e) No
Prospectus or amendment or supplement to the Registration Statement or the
Prospectus shall have been filed to which you shall have
objected
in
writing.
(f) The
Registration Statement and any registration statement required to be filed,
prior to the sale of the Shares, under the Act pursuant to
Rule
462(b) shall
have been filed and shall have become effective under the Act. The Prospectus
Supplement shall have been filed with the Commission
pursuant
to Rule
424(b) under the Act at or before 5:30 P.M., New York City time, on the second
full business day after the date of this Agreement (or
such
earlier time as
may be required under the Act).
(g) Prior
to
and at the time of purchase, and, if applicable, the additional time of
purchase, (i) no stop order with respect to the effectiveness of
the
Registration
Statement shall have been issued under the Act or proceedings initiated under
Section 8(d) or 8(e) of the Act; (ii) the Registration
Statement
and all
amendments thereto shall 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; (iii) none of the Basic Prospectuses
or
the Prospectus, and no amendment or supplement
thereto,
shall
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 are made, not misleading; (iv) no Disclosure Package, and
no
amendment or supplement thereto, shall 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 are
made, not misleading; and (v) none of the Permitted Free Writing Prospectuses,
if any, shall 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 are
made,
not
misleading.
(h) The
Company will, at the time of purchase and, if applicable, at the additional
time
of purchase, deliver to you a certificate of its Chief
Executive
Officer and
its Chief Financial Officer, dated the time of purchase or the additional time
of purchase, as the case may be, in the form attached
as
Exhibit
D
hereto.
(i) You
shall
have received each of the signed Lock-Up Agreements referred to in Section
3(y)
hereof, and each such Lock-Up Agreement
shall
be in full
force and effect at the time of purchase and the additional time of purchase,
as
the case may be.
(j) The
Company shall have furnished to you such other documents and
-25-
certificates
as to
the accuracy and completeness of any statement in the
Registration Statement, any Basic Prospectus, the Prospectus or any Permitted
Free
Writing
Prospectus as of the time of purchase and, if applicable, the
additional time of purchase, as you may reasonably request.
(k) The
Shares shall have been approved for listing on the NYSE, subject only to notice
of issuance at or prior to the time of purchase or the
additional
time of
purchase, as the case may be.
(l) The
NASD
shall not have raised any objection with respect to the fairness or
reasonableness of the underwriting, or other arrangements of
the
transactions,
contemplated hereby.
7. Effective
Date of Agreement; Termination.
This
Agreement shall become effective when the parties hereto have executed and
delivered this
Agreement.
The
obligations of
the several Underwriters hereunder shall be subject to termination in the
absolute discretion of UBS, if (1) since the time of execution of this Agreement
or the earlier respective dates as of which information is given in the
Registration Statement, the Basic Prospectuses, the Prospectus and the Permitted
Free Writing Prospectuses, if any, there has been any change or any development
involving a prospective change in the business, properties, management,
financial condition or results of operations of the Company and the Subsidiaries
taken as a whole, the effect of which change or development is, in the sole
judgment of UBS, so material and adverse as to make it impractical or
inadvisable to proceed with the public offering or the delivery of the Shares
on
the terms and in the manner contemplated in the Registration Statement, the
Basic Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses,
if any, or (2) since the time of execution of this Agreement, there shall have
occurred: (A) a suspension or material limitation in trading in securities
generally on the NYSE, the American Stock Exchange or the NASDAQ; (B) a
suspension or material limitation in trading in the Company’s securities on the
NYSE; (C) a general moratorium on commercial banking activities declared by
either federal or New York State authorities or a material disruption in
commercial banking or securities settlement or clearance services in the United
States; (D) an outbreak or escalation of hostilities or acts of terrorism
involving the United States or a declaration by the United States of a national
emergency or war; or (E) any other calamity or crisis or any change in
financial, political or economic conditions in the United States or elsewhere,
if the effect of any such event specified in clause (D) or (E), in the sole
judgment of UBS, makes it impractical or inadvisable to proceed with the public
offering or the delivery of the Shares on the terms and in the manner
contemplated in the Registration Statement, the Basic Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any, or (3) since
the
time of execution of this Agreement, there shall have occurred any downgrading,
or any notice or announcement shall have been given or made of: (A) any intended
or potential downgrading or (B) any watch, review or possible change that does
not indicate an affirmation or improvement in the rating accorded any securities
of or guaranteed by the Company or any Subsidiary by any “nationally recognized
statistical rating organization,” as that term is defined in Rule 436(g)(2)
under the Act.
-26-
If
UBS elects to
terminate this Agreement as provided in this Section 7,
the
Company and each other Underwriter shall be notified promptly in
writing.
If
the sale to the
Underwriters of the Shares, as contemplated by this Agreement, is not carried
out by the Underwriters for any reason permitted under this Agreement, or if
such sale is not carried out because the Company shall be unable to comply
with
any of the terms of this Agreement, the Company shall not be under any
obligation or liability under this Agreement (except to the extent provided
in
Sections 4(n), 5
and
9
hereof),
and the Underwriters shall be under no obligation or liability to the Company
under this Agreement (except to the extent provided in Section 9
hereof)
or to one another hereunder.
8. Increase
in Underwriters’ Commitments.
Subject
to Sections 6
and
7
hereof,
if any Underwriter shall default in its obligation to take up and pay for the
Firm Shares to be purchased by it hereunder (otherwise than for a failure of
a
condition set forth in Section 6
hereof
or a reason sufficient to justify the termination of this Agreement under the
provisions of Section 7
hereof)
and if the number of Firm Shares which all Underwriters so defaulting shall
have
agreed but failed to take up and pay for does not exceed 10% of the total number
of Firm Shares, the non-defaulting Underwriters (including the Underwriters,
if
any, substituted in the manner set forth below) shall take up and pay for (in
addition to the aggregate number of Firm Shares they are obligated to purchase
pursuant to Section 1
hereof)
the number of Firm Shares agreed to be purchased by all such defaulting
Underwriters, as hereinafter provided. Such Shares shall be taken up and paid
for by such non-defaulting Underwriters in such amount or amounts as you may
designate with the consent of each Underwriter so designated or, in the event
no
such designation is made, such Shares shall be taken up and paid for by all
non-defaulting Underwriters pro rata in proportion to the aggregate number
of
Firm Shares set forth opposite the names of such non-defaulting Underwriters
in
Schedule
A.
Without
relieving any
defaulting Underwriter from its obligations hereunder, the Company agrees with
the non-defaulting Underwriters that it will not sell any Firm Shares hereunder
unless all of the Firm Shares are purchased by the Underwriters (or by
substituted Underwriters selected by you with the approval of the Company or
selected by the Company with your approval).
If
a new Underwriter
or Underwriters are substituted by the Underwriters or by the Company for a
defaulting Underwriter or Underwriters in accordance with the foregoing
provision, the Company or you shall have the right to postpone the time of
purchase for a period not exceeding five business days in order that any
necessary changes in the Registration Statement and the Prospectus and other
documents may be effected.
The
term
“Underwriter” as used in this Agreement shall refer to and include any
Underwriter substituted under this Section 8
with
like effect as if such substituted Underwriter had originally been named in
Schedule
A
hereto.
If
the aggregate
number of Firm Shares which the defaulting Underwriter or Underwriters agreed
to
purchase exceeds 10% of the total number of Firm Shares which all Underwriters
agreed to purchase hereunder, and if neither the non-defaulting Underwriters
nor
-27-
the
Company shall make arrangements within the five business day period stated
above
for the purchase of all the Firm Shares which the defaulting Underwriter or
Underwriters agreed to purchase hereunder, this Agreement shall terminate
without further act or deed and without any liability on the part of the Company
to any Underwriter and without any liability on the part of any non-defaulting
Underwriter to the Company. Nothing in this paragraph, and no action taken
hereunder, shall relieve any defaulting Underwriter from liability in respect
of
any default of such Underwriter under this Agreement.
9. Indemnity
and Contribution.
(a) The
Company agrees to indemnify, defend and hold harmless each Underwriter, its
partners, directors and officers, and any person who
controls
any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, and the successors and assigns of all of the
foregoing
persons,
from and against any loss, damage, expense, liability or claim (including the
reasonable cost of investigation) which, jointly or
severally,
any such
Underwriter or any such person may incur under the Act, the Exchange Act, the
common law or otherwise, insofar as such loss,
damage,
expense,
liability or claim arises out of or is based upon (i) any untrue statement
or
alleged untrue statement of a material fact contained in the
Registration
Statement (or in the Registration Statement as amended by any post-effective
amendment thereof by the Company) or arises out of or is
based
upon any
omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading,
except
insofar as any such loss, damage, expense, liability or claim arises out of
or
is based upon any untrue statement or alleged untrue
statement
of a
material fact contained in, and in conformity with information concerning such
Underwriter furnished in writing by or on behalf of such
Underwriter
through
you to the Company expressly for use in, the Registration Statement or arises
out of or is based upon any omission or alleged
omission
to state a
material fact in the Registration Statement in connection with such information,
which material fact was not contained in such
information
and which
material fact was required to be stated in such Registration Statement or was
necessary to make such information not misleading
or
(ii) any untrue
statement or alleged untrue statement of a material fact included in any
Prospectus (the term Prospectus for the purpose of this Section
9
being
deemed to include Basic Prospectus, the Prospectus Supplement, the Prospectus
and any amendments or supplements to the foregoing), in any
Permitted
Free
Writing Prospectus, in any “issuer information” (as defined in Rule 433 under
the Act) of the Company or in any Prospectus together
with
any combination
of one or more of the Permitted Free Writing Prospectuses, if any, or arises
out
of or is based upon any omission or alleged
omission
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,
except,
with respect to such Prospectus or Permitted Free Writing Prospectus, insofar
as
any such loss, damage, expense, liability or claim
arises
out of or is
based upon any untrue statement or alleged untrue statement of a material fact
contained in, and in conformity with information
concerning
such
Underwriter furnished in writing by or on behalf of such Underwriter through
you
to the Company expressly for use in, such
Prospectus
or
Permitted Free Writing Prospectus or arises
out of or is based upon any omission or alleged omission to state a material
fact in such
Prospectus
or
Permitted
-28-
Free
Writing
Prospectus in connection with such information, which material fact was not
contained in such information and which material fact was
necessary
in order to
make the statements in such information, in the light of the circumstances
under
which they were made, not misleading.
(b) Each
Underwriter severally agrees to indemnify, defend and hold harmless the Company,
its directors and officers, and any person who
controls
the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
and the successors and assigns of all of the
foregoing
persons,
from and against any loss, damage, expense, liability or claim (including the
reasonable cost of investigation) which, jointly or
severally,
the
Company or any such person may incur under the Act, the Exchange Act, the common
law or otherwise, insofar as such loss, damage,
expense,
liability or
claim arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in, and in
conformity
with
information concerning such Underwriter furnished in writing by or on behalf
of
such Underwriter through you to the Company
expressly
for use in,
the Registration Statement (or in the Registration Statement as amended by
any
post-effective amendment thereof by the
Company),
or arises
out of or is based upon any omission or alleged omission to state a material
fact in such Registration Statement in connection with
such
information,
which material fact was not contained in such information and which material
fact was required to be stated in such Registration
Statement
or was
necessary to make such information not misleading.
(c) If
any
action, suit or proceeding (each, a “Proceeding”)
is
brought against a person (an “indemnified
party”)
in
respect of which indemnity
may
be sought against
the Company or an Underwriter (as applicable, the “indemnifying
party”)
pursuant to subsection (a)
or
(b),
respectively, of this
Section
9,
such
indemnified party shall promptly notify such indemnifying party in writing
of
the institution of such Proceeding and such indemnifying
party
shall assume
the defense of such Proceeding, including the employment of counsel reasonably
satisfactory to such indemnified party and
payment
of all fees
and expenses; provided,
however,
that
the omission to so notify such indemnifying party shall not relieve such
indemnifying party
from
any liability
which such indemnifying party may have to any indemnified party or otherwise.
The indemnified party or parties shall have the right to
employ
its or their
own counsel in any such case, but the fees and expenses of such counsel shall
be
at the expense of such indemnified party or parties
unless
the employment
of such counsel shall have been authorized in writing by the indemnifying party
in connection with the defense of such
Proceeding
or the
indemnifying party shall not have, within a reasonable period of time in light
of the circumstances, employed counsel to defend such
Proceeding
or such
indemnified party or parties shall have reasonably concluded that there may
be
defenses available to it or them which are different
from,
additional to
or in conflict with those available to such indemnifying party (in which case
such indemnifying party shall not have the right to direct
the
defense of such
Proceeding on behalf of the indemnified party or parties), in any of which
events such fees and expenses shall be borne by such
indemnifying
party
and paid as incurred (it being understood, however, that such indemnifying
party
shall not be liable for the expenses of more than
one
separate counsel
(in addition to any local counsel) in any one Proceeding or series of related
Proceedings
-29-
in
the same
jurisdiction representing the indemnified parties who are parties to such
Proceeding). The indemnifying party shall not be liable for any
settlement
of any
Proceeding effected without its written consent but, if settled with its written
consent, such indemnifying party agrees to indemnify
and
hold harmless the
indemnified party or parties from and against any loss or liability by reason
of
such settlement. Notwithstanding the foregoing
sentence,
if at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of
counsel
as
contemplated by the second sentence of this Section 9(c),
then
the indemnifying party agrees that it shall be liable for any settlement of
any
Proceeding
effected
without its written consent if (i) such settlement is entered into more than
60
business days after receipt by such indemnifying party
of
the aforesaid
request, (ii) such indemnifying party shall not have fully reimbursed the
indemnified party in accordance with such request prior to the
date
of such
settlement and (iii) such indemnified party shall have given the indemnifying
party at least 30 days’ prior notice of its intention to settle. No
indemnifying
party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened Proceeding in
respect
of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party,
unless
such
settlement includes an unconditional release of such indemnified party from
all
liability on claims that are the subject matter of such
Proceeding
and does
not include an admission of fault or culpability or a failure to act by or
on
behalf of such indemnified party.
(d) If
the
indemnification provided for in this Section 9
is
unavailable to an indemnified party under subsections (a)
and
(b)
of this
Section 9
or
insufficient to
hold an indemnified party harmless in respect of any losses, damages, expenses,
liabilities or claims referred to therein, then each
applicable
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, damages, expenses,
liabilities
or claims
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters
on
the other hand
from the offering of the Shares or (ii) if the allocation provided by clause
(i)
above is not permitted by applicable law, in such
proportion
as is
appropriate to reflect not only the relative benefits referred to in clause
(i)
above but also the relative fault of the Company on the one
hand
and of the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, damages, expenses, liabilities
or
claims, as well as
any other relevant equitable considerations. The relative benefits received
by
the Company on the one hand and the Underwriters
on
the other shall be
deemed to be in the same respective proportions as the total proceeds from
the
offering (net of underwriting discounts and
commissions
but
before deducting expenses) received by the Company, and the total underwriting
discounts and commissions received by the
Underwriters,
bear to
the aggregate public offering price of the Shares. The relative fault of the
Company on the one hand and of the Underwriters on
the
other shall be
determined by reference to, among other things, whether the untrue statement
or
alleged untrue statement of a material fact or
omission
or alleged
omission relates to information supplied by the Company or by the Underwriters
and the parties’ relative intent, knowledge, access
to
information and
opportunity to correct or prevent such statement or omission. The amount paid
or
payable by a party as a result of the losses,
damages,
-30-
expenses,
liabilities
and claims referred to in this subsection shall be deemed to include any legal
or other fees or expenses reasonably incurred by such
party
in connection
with investigating, preparing to defend or defending any
Proceeding.
(e) The
Company and the Underwriters agree that it would not be just and equitable
if
contribution pursuant to this Section 9
were
determined
by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does
not
take account of
the equitable considerations referred to in subsection (d)
above.
Notwithstanding the provisions of this Section 9,
no
Underwriter
shall
be required to
contribute any amount in excess of the amount by which the total price at which
the Shares underwritten by such Underwriter and
distributed
to the
public were offered to the public exceeds the amount of any damage which such
Underwriter has otherwise been required to pay by
reason
of such untrue
statement or alleged untrue statement or omission or alleged
omission.
No
person
guilty of fraudulent misrepresentation (within
the
meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person
who
was not guilty of such fraudulent misrepresentation. The
Underwriters’
obligations to contribute pursuant to this Section 9
are
several in proportion to their respective underwriting commitments and not
joint.
(f) The
indemnity and contribution agreements contained in this Section 9
and the
covenants, warranties and representations of the Company
contained
in this
Agreement shall remain in full force and effect regardless of any investigation
made by or on behalf of any Underwriter, its partners,
directors
or officers
or any person (including each partner, officer or director of such person)
who
controls any Underwriter within the meaning of
Section
15 of the Act
or Section 20 of the Exchange Act, or by or on behalf of the Company, its
directors or officers or any person who controls the
Company
within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and shall
survive any termination of this Agreement or the
issuance
and delivery
of the Shares. The Company and each Underwriter agree promptly to notify each
other of the commencement of any Proceeding
against
it and, in
the case of the Company, against any of the Company’s officers or directors in
connection with the issuance and sale of the Shares, or
in
connection with
the Registration Statement, any Basic Prospectus, any Basic Prospectus, the
Prospectus or any Permitted Free Writing Prospectus.
10. Information
Furnished by the Underwriters.
The
statements set forth set forth in the “Over-Allotment Option” and “Price
Stabilization, Short Positions” paragraphs under the caption “Underwriting” in
the Prospectus Supplement, only insofar as such statements relate to the amount
of selling concession and reallowance or to over-allotment and stabilization
activities that may be undertaken by the Underwriters, constitute the only
information furnished by or on behalf of the Underwriters, as such information
is referred to in Sections 3
and
9
hereof.
11. Notices.
Except
as otherwise herein provided, all statements, requests, notices and agreements
shall be in writing or by telegram or facsimile and, if to the Underwriters,
shall be sufficient in all respects if delivered or sent to UBS Securities
LLC,
000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, Attention: Syndicate Department and,
if to the Company, shall be sufficient in all respects if delivered or sent
to
the Company at the offices of the Company at 000
-00-
Xxxx
Xxxxxx Xxxxx, Xxxx Xxxx, XX 00000, Attention: Xxxxxxx X. Dance.
12. Governing
Law; Construction.
This
Agreement and any claim, counterclaim or dispute of any kind or nature
whatsoever arising out of or in any way relating to this Agreement
(“Claim”),
directly or indirectly, shall be governed by, and construed in accordance with,
the laws of the State of New York. The section headings in this Agreement have
been inserted as a matter of convenience of reference and are not a part of
this
Agreement.
13. Submission
to Jurisdiction.
Except
as set forth below, no Claim may be commenced, prosecuted or continued in any
court other than the courts of the State of New York located in the City and
County of New York or in the United States District Court for the Southern
District of New York, which courts shall have jurisdiction over the adjudication
of such matters, and the Company consents to the jurisdiction of such courts
and
personal service with respect thereto. The Company hereby consents to personal
jurisdiction, service and venue in any court in which any Claim arising out
of
or in any way relating to this Agreement is brought by any third party against
any Underwriter or any indemnified party. Each Underwriter and the Company
(on
its behalf and, to the extent permitted by applicable law, on behalf of its
equity holders and affiliates) waive all right to trial by jury in any action,
proceeding or counterclaim (whether based upon contract, tort or otherwise)
in
any way arising out of or relating to this Agreement. The Company agrees that
a
final judgment in any such action, proceeding or counterclaim brought in any
such court shall be conclusive and binding upon the Company and may be enforced
in any other courts to the jurisdiction of which the Company is or may be
subject, by suit upon such judgment.
14. Parties
at
Interest.
The
Agreement herein set forth has been and is made solely for the benefit of the
Underwriters and the Company and to the extent provided in Section 9
hereof
the controlling persons, partners, directors and officers referred to in such
Section, and their respective successors, assigns, heirs, personal
representatives and executors and administrators. No other person, partnership,
association or corporation (including a purchaser, as such purchaser, from
any
of the Underwriters) shall acquire or have any right under or by virtue of
this
Agreement.
15. No
Fiduciary Relationship.
The
Company hereby acknowledges that the Underwriters are acting solely as
underwriters in connection with the purchase and sale of the Company’s
securities. The Company further acknowledges that the Underwriters are acting
pursuant to a contractual relationship created solely by this Agreement entered
into on an arm’s length basis, and in no event do the parties intend that the
Underwriters act or be responsible as a fiduciary to the Company, its
management, stockholders or creditors or any other person in connection with
any
activity that the Underwriters may undertake or have undertaken in furtherance
of the purchase and sale of the Company’s securities, either before or after the
date hereof. The Underwriters hereby expressly disclaim any fiduciary or similar
obligations to the Company, either in connection with the transactions
contemplated by this Agreement or any matters leading up to such transactions,
and the Company hereby confirms its understanding and agreement to that effect.
The Company and the Underwriters agree that they are each responsible for making
their own independent judgments with respect to any such transactions and that
any opinions or views expressed by the Underwriters to the Company regarding
such
-32-
transactions,
including, but not limited to, any opinions or views with respect to the price
or market for the Company’s securities, do not constitute advice or
recommendations to the Company. The Company hereby waives and releases, to
the
fullest extent permitted by law, any claims that the Company may have against
the Underwriters with respect to any breach or alleged breach of any fiduciary
or similar duty to the Company in connection with the transactions contemplated
by this Agreement or any matters leading up to such transactions.
16. Counterparts.
This
Agreement may be signed by the parties in one or more counterparts which
together shall constitute one and the same agreement among the
parties.
17. Successors
and Assigns.
This
Agreement shall be binding upon the Underwriters and the Company and their
successors and assigns and any successor or assign of any substantial portion
of
the Company’s and any of the Underwriters’ respective businesses and/or
assets.
18. Miscellaneous.
UBS, an
indirect, wholly owned subsidiary of UBS AG, is not a bank and is separate
from
any affiliated bank, including any U.S. branch or agency of UBS AG. Because
UBS
is a separately incorporated entity, it is solely responsible for its own
contractual obligations and commitments, including obligations with respect
to
sales and purchases of securities. Securities sold, offered or recommended
by
UBS are not deposits, are not insured by the Federal Deposit Insurance
Corporation, are not guaranteed by a branch or agency, and are not otherwise
an
obligation or responsibility of a branch or agency.
[The
Remainder of This Page Intentionally Left Blank; Signature Page
Follows]
-33-
If
the foregoing
correctly sets forth the understanding between the Company and the several
Underwriters, please so indicate in the space provided below for that purpose,
whereupon this Agreement and your acceptance shall constitute a binding
agreement between the Company and the Underwriters, severally.
Very
truly
yours,
Essex
Property Trust,
Inc.
By: /s/
Xxxxxxx X. Dance
Name:
Xxxxxxx X.
Dance
Title:
Executive Vice
President and Chief Financial Officer
Accepted
and agreed to as of the date first above written, on behalf of itself and the
other several Underwriters named in Schedule A
UBS
Securities LLC
By: /s/
Xxxxxxx Xxxxxxxx
Name:
Xxxxxxx Xxxxxxxx
Title:
Executive Director
By: /s/
Xxxxxx du-Luart
Name:
Xxxxxx du-Luart
Title:
Associate Director
SCHEDULE
A
|
Underwriter
|
Number
of Firm Shares
|
|
UBS
SECURITIES LLC . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
|
1,500,000
|
|
Total
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . .
. .
|
1,500,000
|
SCHEDULE
B
Permitted
Free Writing Prospectuses
None.
SCHEDULE
C
Subsidiaries
formed since December 31, 2006
|
1. Essex
Hillsdale Garden Apartments, L.P.
|
|
2. Essex
Camino Xxxx Apartments, L.P.
|
|
3. Essex
Harvest Park Apartments, L.P.
|
|
4. Essex
Cardiff Apartments,
L.P.
|
|
5. Essex
Canyon Oaks Apartments, L.P.
|
|
6. Essex Coldwater
Canyon Apartments, L.P.
|
|
7. Essex HGA,
LLC
|
|
8. Essex CRA,
LLC
|
|
9. Essex
HPA, LLC
|
|
10. Essex
Cardiff,
LLC
|
|
11. Essex Canyon
Oaks,
LLC
|
|
12. Essex
Coldwater Canyon,
LLC
|
|
13. Pacific Western
Insurance Company,
Inc.
|
EXHIBIT
A
Lock-Up
Agreement
___________
___,
2007
UBS
Securities LLC
Together
with the other Underwriters
named
in
Schedule A to the Underwriting Agreement
referred
to herein
c/o
UBS
Securities LLC
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000-0000
Ladies
and Gentlemen:
This
Lock-Up
Agreement is being delivered to you in connection with the proposed Underwriting
Agreement (the “Underwriting
Agreement”)
to be
entered into by Essex Property Trust, Inc., a Maryland corporation (the
“Company”),
and
you and the other underwriters named in Schedule A to the Underwriting
Agreement, with respect to the public offering (the “Offering”)
of
common stock, par value $0.0001 per share, of the Company (the “Common
Stock”).
In
order to induce
you to enter into the Underwriting Agreement, the undersigned agrees that,
for a
period (the “Lock-Up
Period”)
beginning on the date hereof and ending on, and including, the date that is
60
days after the date of the final prospectus supplement relating to the Offering,
the undersigned will not, without the prior written consent of UBS Securities
LLC, (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge,
grant any option to purchase or otherwise dispose of or agree to dispose of,
directly or indirectly, or file (or participate in the filing of) a registration
statement with the Securities and Exchange Commission (the “Commission”)
in
respect of, or establish or increase a put equivalent position or liquidate
or
decrease a call equivalent position within the meaning of Section 16 of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
of
the Commission promulgated thereunder (the “Exchange
Act”)
with
respect to, any Common Stock or any other securities of the Company that are
substantially similar to Common Stock, or any securities convertible into or
exchangeable or exercisable for, or any warrants or other rights to purchase,
the foregoing, (ii) enter into any swap or other arrangement that transfers
to
another, in whole or in part, any of the economic consequences of ownership
of
Common Stock or any other securities of the Company that are substantially
similar to Common Stock, or any securities convertible into or exchangeable
or
exercisable for, or any warrants or other rights to purchase, the foregoing,
whether any such transaction is to be settled by delivery of Common Stock or
such other securities, in cash or otherwise or (iii) publicly announce an
intention to effect any transaction specified in clause (i) or (ii). The
foregoing sentence shall not apply to (a) bona fide gifts, provided the
recipient thereof agrees in writing with the Underwriters to be bound by the
terms
A-1
of
this Lock-Up Agreement[, (b) the sale of up to 2,500 shares of Common Stock
or
(c)]1
Applies
to Messrs. Xxxxx and Millichap only[or
(b)]
dispositions to any trust for the direct or indirect benefit of the undersigned
and/or the immediate family of the undersigned, provided that such trust agrees
in writing with the Underwriters to be bound by the terms of this Lock-Up
Agreement. For purposes of this paragraph, “immediate family” shall mean the
undersigned and the spouse, any lineal descendent, father, mother, brother
or
sister of the undersigned.
In
addition, the
undersigned hereby waives any rights the undersigned may have to require
registration of Common Stock in connection with the filing of a registration
statement relating to the Offering. The undersigned further agrees that, for
the
Lock-Up Period, the undersigned will not, without the prior written consent
of
UBS Securities LLC, make any demand for, or exercise any right with respect
to,
the registration of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock, or warrants or other rights to
purchase Common Stock or any such securities.
The
undersigned
hereby confirms that the undersigned has not, directly or indirectly, taken,
and
hereby covenants that the undersigned will not, directly or indirectly, take,
any action designed, or which has constituted or will constitute or might
reasonably be expected to cause or result in the stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale
of
shares of Common Stock.
*
*
*
1 Applies
to Messrs. Xxxxx and Millichap only
A-2
If
(i) the Company
notifies you in writing that it does not intend to proceed with the Offering,
(ii) the registration statement filed with the Commission with respect to the
Offering is withdrawn or (iii) for any reason the Underwriting Agreement shall
be terminated prior to the “time of purchase” (as defined in the Underwriting
Agreement), this Lock-Up Agreement shall be terminated and the undersigned
shall
be released from its obligations hereunder.
Yours
very
truly,
Name:
A-3
EXHIBIT
B
OPINION
OF XXXXX & XxXXXXXX LLP
[date]
UBS
Securities LLC
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000-0000
Ladies
and Gentlemen:
[Entry
language to come from company counsel]
| 1. |
The
Company is a corporation duly incorporated and existing under and
by
virtue of the laws of the State of Maryland and is in good standing
with
the State Department of Assessments and Taxation of Maryland. The
Company
has the corporate power to own, lease and operate its properties
and
conduct its business in all material respects as described under
the
headings “Item 1 Business” and “Item 2 Properties” in the Company’s Annual
Report on Form 10-K for the year ended December 31, 2006. Essex Portfolio,
L.P. a California limited partnership (the “Operating
Partnership”),
is validly existing as a limited partnership in good standing under
the
laws of the jurisdiction of its organization with the power to own,
lease
and operate its properties and conduct its business in all material
respects as described under the headings “Item 1 Business” and “Item 2
Properties” in the Operating Partnership’s Annual Report on Form 10-K for
the year ended December 31, 2006.
|
| 2. |
To
our knowledge, each of the Company and the Operating Partnership,
as to
which the Company is the general partner, is duly qualified or registered
to transact business in each jurisdiction set forth on Schedule 1
hereto
in which the failure, individually or in the aggregate, to be so
qualified
could reasonably be expected to result in a Material Adverse Change.
To
our knowledge, other than the Company’s interests in the Subsidiaries set
forth in Exhibit 21.1 to the Company’s Annual Report on Form 10-K for the
year ended December 31, 2006, and Subsidiaries formed since December
31,
2006, the Company does not own, directly or indirectly, any capital
stock
or other equity securities of any other corporation or any ownership
interest in any limited liability company, partnership, joint venture
or
other association.
|
| 3. |
As
of December 31, 2006, the authorized capitalization of the Company
was as
set forth under the caption “Description of Capital Stock—General” in the
Basic Prospectus. The Common Stock, the Company’s 7.815% Series F
Cumulative Redeemable Preferred Stock, par value $0.0001 per share,
and
the Company’s 4.485% Series G Cumulative Convertible Preferred Stock, par
value $0.0001 per share, conform as to legal matters in all material
respects to the descriptions thereof contained in the Basic Prospectus
under the caption “Description of Capital Stock.”
|
| 4. |
The
execution, delivery and performance of the Underwriting Agreement
by the
Company and the transactions contemplated thereby do not conflict
with, or
result in any breach of, or constitute a default under (nor constitute
an
event that with notice, lapse of time or both would constitute a
breach of
or default under), (i) the charter or bylaws of the Company, (ii)
any of
the agreements listed as Exhibits 10.1 through 10.37 to the Company’s
Annual Report on Form 10-K for the year ended December 31, 2006 or
(iii)
to our knowledge, any Applicable Law or any decree, judgment or order
applicable to the Company (other than state and foreign securities
or blue
sky laws, as to which we express no opinion), except in the case
of
clauses (ii) and (iii) for such conflicts, breaches or defaults,
which
individually or in the aggregate could not be reasonably expected
to have
a Material Adverse Change.
|
B-1
| 5. |
The
Company has the corporate power to execute and deliver the Agreement
and
to issue, sell and deliver the Shares as contemplated in this Agreement.
This Agreement has been duly authorized, executed and, so far as
is known
to us, delivered by the Company.
|
| 6. |
No
approval, authorization, consent or order of, or filing with, any
federal
or state governmental or regulatory commission, board, body, authority
or
agency is required under Applicable Law in connection with the execution,
delivery and performance of the Underwriting Agreement, or the
consummation of the transactions contemplated thereby, by the Company,
other than such as have been obtained or made under the Act or the
Securities Exchange Act of 1934, as amended; provided, however, that
we do
not express any opinion as to any necessary qualification under the
securities or blue sky laws of the various jurisdictions in which
the
Shares are being offered by Underwriter or any approval of the
underwriting terms and arrangements relating to the offering of the
Shares
by the NASD.
|
| 7. |
The
Shares, when issued and delivered by the Company pursuant to the
resolutions of the Company’s Board of Directors approving such issuance
and the Underwriting Agreement and against payment of the consideration
set forth therein, will be duly authorized, validly issued, fully
paid and
nonassessable.
|
| 8. |
The
issuance and sale of the Shares by the Company is not subject to
preemptive or other similar rights arising by operation of the Maryland
General Corporation Law, under the charter or bylaws of the Company
or
under any agreement known to us to which the Company is a party.
|
| 9. |
To
our knowledge, except as otherwise described in the Registration
Statement, the Disclosure Package, the Prospectus, the documents
incorporated therein by reference or the exhibits filed in connection
therewith, there are no persons with registration or other similar
rights
to have any securities registered pursuant to the Registration
Statement.
|
| 10. |
At
the time the Registration Statement became effective and as of the
date of
the Underwriting Agreement, the Registration Statement and, as of
the date
of the Underwriting Agreement and the Time of Purchase, the Prospectus
(in
each case, other than the financial statements, financial schedules
and
other financial and statistical data included or incorporated by
reference
in, or excluded from, the Registration Statement and the Prospectus,
as to
which we express no opinion) complied as to form in all material
respects
with the requirements of the Act and the rules and regulations promulgated
thereunder.
|
| 11. |
To
our knowledge, there are no actions, suits or proceedings or inquiries
or
investigations, pending or threatened, against the Company or any
of its
officers and directors or to which the Company’s assets (excluding the
Company’s direct or indirect interests in the Subsidiaries) are subject,
at law or in equity, before or by any federal, state, local or foreign
governmental or regulatory commission, board, body, authority, arbitration
panel or agency that are required to be described in the Prospectus
or the
documents incorporated therein by reference but are not so described.
|
B-2
| 12. |
The
Company is not an “investment company” required to register under the
Investment Company Act of 1940, as amended, (the “1940 Act”) or a company
“controlled” by an “investment company” within the meaning of the 1940
Act.
|
| 13. |
Commencing
with its taxable year ended December 31, 1994 through its taxable
year
ended December 31, 2006, the Company has been organized and has operated
in conformity with the requirements for qualification and taxation
as a
REIT under the Code and its organization and proposed method of operation
will enable it to continue to meet the requirements for qualification
and
taxation as a REIT; and
|
| 14. |
The
statements contained in the Basic Prospectus under the caption “Certain
Material Federal Income Tax Considerations” insofar as such statements
constitute matters of law, summaries of legal matters, or legal
conclusions, have been reviewed by us and fairly present and summarize,
in
all material respects, the matters referred to
therein.
|
The
Registration
Statement became effective under the Securities Act on March 30, 2007 and,
to
our knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued under the Securities Act or proceedings therefor
initiated or threatened by the Commission.
In
addition, we have
reviewed the Registration Statement, the Basic Prospectus, the Prospectus and
the Disclosure Package and have participated in conferences with officers and
other representatives of the Company, representatives of the independent public
accountants of the Company and representatives of the Underwriters at which
the
contents of the Registration Statement, the Basic Prospectus, the Prospectus
and
the Disclosure Package (as defined below) were discussed and, although we are
not passing upon and do not assume responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration Statement, the
Basic
Prospectus, the Prospectus and the Disclosure Package (as defined below) (except
as and to the extent stated in subparagraphs 12 and 15 above), on the basis
of
the foregoing, nothing has come to our attention that causes us to believe
that
(i) the Registration Statement, at the Effective Time, 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,
(ii)
the Disclosure Package (as defined below), as of the Applicable Time (as defined
below), included an untrue statement of a material fact or omitted 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 or (iii) the
Prospectus, as of the date of the Prospectus Supplement, or as of the date
hereof, 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 we express no with respect to the financial
statements and schedules, and other financial data derived therefrom, included
in the Registration Statement, the Disclosure Package or the Prospectus). As
used herein, (A) “Disclosure
Package”
means
the Basic Prospectus together with the Pricing Information, (B) “Applicable
Time”
means
[___] [“A.M.” / “P.M.”], New York City time, on [May 3, 2007], and (C)
“Pricing
Information”
means
(i) the number of Shares offered for sale pursuant to the Prospectus and (ii)
the public offering price per Share, in the case of each of clause (C)(i) and
clause (C)(ii), as reflected on the cover page of the Prospectus
Supplement.
The
limitations
inherent in the independent verification of factual matters and the character
of
determinations involved in the preparation of a disclosure document are such,
however, that we do not assume any responsibility, except as otherwise stated
in
opinion 12 and 15 above, for the accuracy, completeness or fairness of the
statements contained in the Registration Statement, the Disclosure Package
or
Prospectus or any amendments or supplements thereto (including any of the
documents incorporated by reference therein).
B-3
Capitalized
terms used herein without definition shall have the respective meanings ascribed
to them in the Underwriting Agreement.
B-4
EXHIBIT
C
OPINION
OF XXXXXX XXXXXX, ESQ.
[date]
UBS
Securities LLC
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000-0000
Ladies
and Gentlemen:
References
to the Prospectus in this Exhibit
B
include
any supplements thereto at the Closing Date.
| 1. |
All
of the issued and outstanding partnership interests of Essex Portfolio
L.P. have been duly authorized and issued in accordance with the
partnership agreement.
|
| 2. |
To
the best knowledge of such counsel, neither the Company nor any Subsidiary
is in violation of its charter or by laws or any law, administrative
regulation or administrative or court decree applicable to the Company
or
any Subsidiary or is in default in the performance or observance
of any
obligation, agreement, covenant or condition contained in any material
existing instrument, except in each such case for such violations
or
defaults as would not, individually or in the aggregate, result in
a
Material Adverse Change.
|
| 3. |
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 Registration Statement, the Basic Prospectus or
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 except as would not, individually or in
the
aggregate, result in a Material Adverse Change; and the execution,
delivery and performance of any of such agreements did not, at the
time of
execution and delivery, and does not constitute a breach of, or default
under, the charter or bylaws of such party or any material contract,
lease
or other instrument to which such party is a party or by which its
properties may be bound or any law, administrative regulation or
administrative or court order or decree, except for such breaches
or
defaults as would not, individually or in the aggregate, result in
a
Material Adverse Change.
|
Capitalized
terms used herein without definition shall have the respective meanings ascribed
to them in the Underwriting Agreement.
F-1
EXHIBIT
D
OFFICERS’
CERTIFICATE
Each
of the
undersigned, [name of CEO], President and Chief Executive Officer of Essex
Property Trust, Inc., a Maryland corporation (the “Company”),
and
[name of CFO], Chief Financial Officer of the Company, on behalf of the Company,
does hereby certify pursuant to Section 6(h)
of that
certain Underwriting Agreement dated [May 3, 2007] (the “Underwriting
Agreement”)
between the Company and, on behalf of the several Underwriters named therein,
UBS Securities LLC, that as of [May 9, 2007]:
| 1. |
[“He”
/ “She” / “He or she”] has reviewed the Registration Statement, each Basic
Prospectus, the Prospectus and each Permitted Free Writing
Prospectus.
|
| 2. |
The
representations and warranties of the Company as set forth in the
Underwriting Agreement are true and correct as of the date hereof
and as
if made on the date hereof.
|
| 3. |
The
Company has performed all of its obligations under the Underwriting
Agreement as are to be performed at or before the date
hereof.
|
| 4. |
The
conditions set forth in paragraph (g)
of
Section 6
of
the Underwriting Agreement have been
met.
|
Capitalized
terms
used herein without definition shall have the respective meanings ascribed
to
them in the Underwriting Agreement.
In
Witness
Whereof,
the
undersigned have hereunto set their hands on this [May 9, 2007].
|
Name: [name
of CEO]
Title: President
and Chief Executive Officer
|
|
Name: [name
of CFO]
Title: Chief
Financial Officer
|
D-1
