Kimco Realty Corporation
(a Maryland corporation)
Common Stock, Warrants to Purchase Common Stock, Preferred Stock
and Depositary Shares
Underwriting Agreement
July 9, 1998
Xxxxxx X. Xxxxx & Co., L. P.
00000 Xxxxxxxxxx Xxxx
Xx. Xxxxx, XX 00000-0000
Ladies and Gentlemen:
Kimco Realty Corporation, a Maryland corporation (the "Company"),
proposes to issue and sell shares of Common Stock, $.01 par value (the
"Common Stock"), or warrants to purchase a number of shares of Common Stock
(the "Common Stock Warrants"), or both, or shares of Preferred Stock, $1.00
par value (the "Preferred Shares"), from time to time, in one or more
offerings on terms to be determined at the time of sale. The Preferred
Shares may be offered in the form of depositary shares (the "Depositary
Shares") represented by depositary receipts (the "Depositary Receipts"). The
Common Stock Warrants will be issued pursuant to a Common Stock Warrant
Agreement (the "Warrant Agreement") between the Company and a warrant agent
(the "Warrant Agent"). Each series of Preferred Shares may vary as to the
specific number of shares, title, stated value, liquidation preference,
issuance price, ranking, dividend rate or rates (or method of calculation),
dividend payment dates, any redemption or sinking fund requirements, any
conversion provisions and any other variable terms as set forth in the
applicable articles supplementary (each, the "Articles Supplementary")
relating to such Preferred Shares. As used herein, "Securities" shall mean
the Common Stock, the Common Stock Warrants, the Preferred Shares, the
Depositary Shares and the Depositary Receipts; and "Warrant Securities"
shall mean the Common Stock issuable upon exercise of Common Stock Warrants.
As used herein, "you" and "your," unless the context otherwise requires,
shall mean the parties to whom this Agreement is addressed together with the
other parties, if any, identified in the applicable Terms Agreement (as
hereinafter defined) as additional co-managers with respect to Underwritten
Securities (as hereinafter defined) purchased pursuant thereto.
Whenever the Company determines to make an offering of Securities
through you or through an underwriting syndicate managed by you, the Company
will enter into an agreement (the "Terms Agreement") providing for the sale
of such Securities (the "Underwritten Securities") to, and the purchase and
offering thereof by, you and such other underwriters, if any, selected by
you as have authorized you to enter into such Terms Agreement on their
behalf (the "Underwriters," which term shall include you whether acting
alone in the sale of the Underwritten Securities or as a member of an
underwriting syndicate and any Underwriter substituted pursuant to Section
10 hereof). The Terms Agreement relating to the offering of
Underwritten Securities shall specify the number of Underwritten Securities
of each class or series to be initially issued, including the number of
Common Stock Warrants, if any (the "Initial Underwritten Securities"),
whether the Initial Underwritten Securities shall be in the form of
Depositary Shares and the fractional amount of Preferred Shares represented
by each Depositary Share, the names of the Underwriters participating in
such offering (subject to substitution as provided in Section 10 hereof),
the number of Initial Underwritten Securities which each such Underwriter
severally agrees to purchase, the names of such of you or such other
Underwriters acting as co-managers, if any, in connection with such
offering, the price at which the Initial Underwritten Securities are to be
purchased by the Underwriters from the Company, any initial public offering
price, the time, date and place of delivery and payment, any delayed
delivery arrangements and any other variable terms of the Initial
Underwritten Securities (including, but not limited to, current ratings (in
the case of Preferred Shares and Depositary Shares only), designations,
liquidation preferences, conversion provisions, redemption provisions and
sinking fund requirements and the terms of the Warrant Securities and the
terms, prices and dates upon which such Warrant Securities may be
purchased). In addition, each Terms Agreement shall specify whether the
Company has agreed to grant to the Underwriters an option to purchase
additional Underwritten Securities to cover over-allotments, if any, and the
number of Underwritten Securities subject to such option (the "Option
Securities"). As used herein, the term "Underwritten Securities" shall
include the Initial Underwritten Securities and all or any portion of the
Option Securities agreed to be purchased by the Underwriters as provided
herein, if any. The Terms Agreement, which shall be substantially in the
form of Exhibit A hereto, may take the form of an exchange of any standard
form of written telecommunication between you and the Company. Each offering
of Underwritten Securities through you or through an underwriting syndicate
managed by you will be governed by this Agreement, as supplemented by the
applicable Terms Agreement.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-37285) for
the registration of the Securities and Warrant Securities and certain of the
Company's debt securities, under the Securities Act of 1933, as amended (the
"1933 Act"), and the offering thereof from time to time in accordance with
Rule 415 of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations"). Such registration statement (including all
pre-effective amendments thereto) has been declared effective by the
Commission, and the Company has filed such post-effective amendments thereto
as may have been required prior to the execution of the applicable Terms
Agreement and each such post-effective amendment has been declared effective
by the Commission. Such registration statement (as so amended, if
applicable), including all information, if any, deemed to be a part thereof
pursuant to Rule 434 of the 1933 Act Regulations, is collectively referred
to herein as the "Registration Statement" and the final prospectus and the
prospectus supplement relating to the offering of the Underwritten
Securities (the "Prospectus Supplement"), in the form first used to confirm
sales by the Underwriters for use in connection with the offering of the
Underwritten Securities, are collectively referred to herein as the
"Prospectus"; provided, however, that all references to the "Registration
Statement" and the "Prospectus" shall be deemed to include all documents
incorporated therein by reference pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"), prior to the execution of the applicable
Terms Agreement. All references in this Agreement to financial
statements and schedules and other information which is "contained,"
"included" or "stated" in the Registration Statement or the Prospectus (and
all other references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information which is or is
deemed to be incorporated by reference in the Registration Statement or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement or the Prospectus
shall be deemed to mean and include the filing of any document under the
1934 Act which is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be. If the Company
elects to rely on Rule 434 under the 1933 Act Regulations, all references to
the "Prospectus" shall be deemed to include, without limitation, the final
or preliminary prospectus and the term sheet or abbreviated term sheet,
taken together, provided to the Underwriters by the Company in reliance on
Rule 434 under the 1933 Act (the "Rule 434 Prospectus"). If the Company
files a registration statement with the Commission to register a portion of
the Securities and Warrant Securities and relies on Rule 462(b) for such
registration statement to become effective upon filing with the Commission
(the "Rule 462 Registration Statement"), then any reference to "Registration
Statement" herein shall be deemed to be both the registration statement
referred to above (No. 333-37285) and the Rule 462 Registration Statement.
Section 1. Representations and Warranties. (a) The Company
represents and warrants to you, as of the date hereof, and to you and each
other Underwriter named in the applicable Terms Agreement, as of the date
thereof, the Closing Time (as hereinafter defined) and each Date of
Delivery, if any (as hereinafter defined) (in each case, a "Representation
Date"), as follows:
(i) The Registration Statement and the Prospectus, at the
time the Registration Statement became effective and at each time
thereafter on which the Company filed an Annual Report on Form 10-K
with the Commission, complied, and as of each Representation Date
will comply, in all material respects with the requirements of the
1933 Act and 1933 Act Regulations; the Registration Statement, at
the time the Registration Statement became effective and at each
time thereafter on which the Company filed an Annual Report on Form
10-K with the Commission, did not, and at each time thereafter on
which any amendment to the Registration Statement becomes effective
or the Company files an Annual Report on Form 10-K with the
Commission and as of each Representation Date will not, contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; and the Prospectus, as of the
date hereof, does not, and as of each Representation Date will not,
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided, however, that the representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter through you expressly for use
in the Registration Statement or Prospectus.
(ii) The accountants who certified the financial
statements, financial statement schedules and historical summaries
of revenue and certain operating expenses for the
properties related thereto included or incorporated by reference in
the Registration Statement and the Prospectus are independent
public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(iii) The historical financial statements included or
incorporated by reference in the Registration Statement and the
Prospectus present fairly the financial position of the Company and
its consolidated subsidiaries as at the date indicated and the
results of their operations for the periods specified; except as
may otherwise be stated in the Registration Statement and the
Prospectus, said financial statements have been prepared in
conformity with generally accepted accounting principles applied on
a consistent basis; and the financial statement schedules and other
financial information and dated included or incorporated by
reference in the Registration Statement and the Prospectus present
fairly the information required to be stated therein.
(iv) The historical summaries of revenue and certain
operating expenses included or incorporated by reference in the
Registration Statement and the Prospectus, if any, present fairly
the revenue and those operating expenses included in such summaries
for the periods specified in conformity with generally accepted
accounting principles; the pro forma condensed consolidated
financial statements included or incorporated by reference in the
Registration Statement and the Prospectus, if any, present fairly
the pro forma financial position of the Company and its
consolidated subsidiaries as at the dates indicated and the pro
forma results of their operations for the periods specified; and
the pro forma condensed consolidated financial statements, if any,
have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis, the assumptions on which
such pro forma financial statements have been prepared are
reasonable and are set forth in the notes thereto, such pro forma
financial statements have been prepared, and the pro forma
adjustments set forth therein have been applied, in accordance with
the applicable accounting requirements of the 1933 Act and the 1933
Act Regulations, and such pro forma adjustments have been properly
applied to the historical amounts in the compilation of such
statements.
(v) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
may otherwise be stated therein or contemplated thereby, (A) there
has been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of
business, (B) there have been no transactions or acquisitions
entered into by the Company or any of its subsidiaries other than
those arising in the ordinary course of business, which are
material with respect to the Company and its subsidiaries
considered as one enterprise, and (C) except for regular quarterly
dividends on the Company's common stock, or dividends declared,
paid or made in accordance with the terms of any series of the
Company's preferred stock, there has been no dividend or
distribution of any kind declared, paid or made by the Company on
any class of its capital stock.
(vi) The Company has been duly incorporated and is validly
existing as a corporation under the laws of Maryland and is in good
standing with the State Department of Assessments and Taxation of
Maryland with corporate power and authority to own, lease and
operate its properties and to conduct its business as described in
the Prospectus; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not have a
material adverse effect on the condition, financial or otherwise,
or on the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise; and the
Articles Supplementary relating to the Preferred Shares or
Depositary Shares, if applicable, will be in full force and effect
as of each Representation Date.
(vii) Each significant subsidiary (as defined in Rule 1-02
of Regulation S-X promulgated under the 0000 Xxx) of the Company
(each, a "Significant Subsidiary") has been duly incorporated and
is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has corporate power
and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and is duly
qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property
or the conduct of business, except where the failure to so qualify
would not have a material adverse effect on the condition,
financial or otherwise, or on the earnings, business affairs or
business prospects of the Company and its subsidiaries considered
as one enterprise; and all of the issued and outstanding capital
stock of each Significant Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and is owned by
the Company, directly or through subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim
or equity, except for security interests granted in respect of
indebtedness of the Company or any of its subsidiaries and referred
to in the Prospectus.
(viii) The authorized, issued and outstanding stock of the
Company is as set forth in the Prospectus under "Capitalization" or
in the latest balance sheet incorporated by reference therein
(except for subsequent issuances, if any, pursuant to reservations,
agreements, employee benefit plans, dividend reinvestment plans,
employee and director stock option plans or the exercise of
convertible securities referred to in the Prospectus or otherwise
referred to in the Prospectus); and the outstanding capital stock
of the Company has been duly authorized and validly issued and is
fully paid and non-assessable and is not subject to preemptive or
other similar rights.
(ix) The Underwritten Securities being sold pursuant to
the applicable Terms Agreement and, if applicable, the deposit of
the Preferred Shares in accordance with the provisions of a Deposit
Agreement (each, a "Deposit Agreement"), among the Company, the
financial institution named in the Deposit Agreement (the
"Depositary") and the holders of the Depositary Receipts issued
thereunder, have, as of each Representation Date, been duly
authorized by the Company and such Underwritten Securities have
been duly authorized by the Company and such Underwritten
Securities have been duly
authorized for issuance and sale pursuant to this Agreement and
such Underwritten Securities, when issued and delivered by the
Company pursuant to this Agreement against payment of the
consideration set forth in the applicable Terms Agreement or any
Delayed Delivery Contract (as hereinafter defined), will be validly
issued, fully paid and non-assessable and will not be subject to
preemptive or other similar rights; the Preferred Shares, if
applicable, conform to the provisions of the Articles
Supplementary; and the Underwritten Securities being sold pursuant
to the applicable Terms Agreement conform in all material respects
to all statements relating thereto contained in the Prospectus.
(x) If applicable, the Common Stock Warrants have been
duly authorized and, when issued and delivered pursuant to this
Agreement and countersigned by the Warrant Agent as provided in the
Warrant Agreement, will have been duly executed, countersigned,
issued and delivered and will constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the
Warrant Agreement under which they are to be issued; the issuance
of the Warrant Securities upon exercise of the Common Stock
Warrants will not be subject to preemptive or other similar rights;
and the Common Stock Warrants conform in all material respects to
all statements relating thereto contained in the Prospectus.
(xi) If applicable, the shares of Common Stock issuable
upon conversion of any of the Preferred Shares or the Depositary
Shares, or the Warrant Securities, will have been duly and validly
authorized and reserved for issuance upon such conversion or
exercise by all necessary corporate action and such shares, when
issued upon such conversion or exercise, will be duly and validly
issued and will be fully paid and non-assessable, and the issuance
of such shares upon such conversion or exercise will not be subject
to preemptive or other similar rights; the shares of Common Stock
issuable upon conversion of any of the Preferred Shares or the
Depositary Shares, or the Warrant Securities, conform in all
material respects to the descriptions thereof in the Prospectus.
(xii) The applicable Warrant Agreement, if any, and the
applicable Deposit Agreement, if any, will have been duly
authorized, executed and delivered by the Company prior to the
issuance of any applicable Underwritten Securities, and each
constitutes a valid and legally binding agreement of the Company
enforceable in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency or other similar
laws relating to or affecting creditors' rights generally and by
general equity principles (regardless of whether enforcement is
considered in a proceeding in equity or at law); and the Warrant
Agreement, if any, and the Deposit Agreement, if any, each conforms
in all material respects to all statements relating thereto
contained in the Prospectus.
(xiii) If applicable, upon execution and delivery of the
Depositary Receipts pursuant to the terms of the Deposit Agreement,
the persons in whose names such Depositary Receipts are registered
will be entitled to the rights specified therein and in the Deposit
Agreement, except as enforcement of such rights may be limited by
bankruptcy, insolvency or other similar laws relating to or
affecting creditors' rights generally and by
general equity principles (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(xiv) Neither the Company nor any of its subsidiaries is
in violation of its charter or by-laws or in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which
the Company or any of its subsidiaries is a party or by which it or
any of them may be bound, or to which any of the property or assets
of the Company or any of its subsidiaries is subject, except for
any such violation or default that would not have a material
adverse effect on the condition, financial or otherwise, or on the
earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise; and the execution,
delivery and performance of this Agreement, the applicable Terms
Agreement, the applicable Warrant Agreement, if any, or the
applicable Deposit Agreement, if any, and the consummation of the
transactions contemplated herein and therein and compliance by the
Company with its obligations hereunder and thereunder have been
duly authorized by all necessary corporate action, and will not
conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of
its subsidiaries pursuant to any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the
Company or any of its subsidiaries is a party or by which it or any
of them may be bound, or to which any of the property or assets of
the Company or any of its subsidiaries is subject, nor will such
action result in any violation of the charter or by-laws of the
Company or any applicable law, administrative regulation or
administrative or court order or decree.
(xv) The Company has operated and intends to continue to
operate in such a manner as to qualify to be taxed as a "real
estate investment trust" under the Internal Revenue Code of 1986,
as amended (the "Code"), for the taxable year in which sales of the
Underwritten Securities are to occur.
(xvi) Neither the Company nor any of its subsidiaries is
an "investment company" within the meaning of the Investment
Company Act of 1940, as amended (the "1940 Act").
(xvii) There is no action, suit or proceeding before or by
any court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company, threatened against or
affecting the Company or any of its subsidiaries which is required
to be disclosed in the Prospectus (other than as disclosed
therein), or which might result in any material adverse change in
the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, or which might materially and
adversely affect the properties or assets thereof or which might
materially and adversely affect the consummation of this Agreement,
the applicable Terms Agreement, the applicable Warrant Agreement,
if any, or the applicable Deposit Agreement, if any, or the
transactions contemplated herein or therein; all pending legal or
governmental
proceedings to which the Company or any of its subsidiaries is a
party or of which any of its property or assets is the subject
which are not described in the Prospectus, including ordinary
routine litigation incidental to the business, are, considered in
the aggregate, not material; and there are no contracts or
documents of the Company or any of its subsidiaries which are
required to be filed as exhibits to the Registration Statement by
the 1933 Act or by the 1933 Act Regulations which have not been so
filed.
(xviii) Neither the Company nor any of its subsidiaries is
required to own or possess any trademarks, service marks, trade
names or copyrights in order to conduct the business now operated
by it, other than those the failure to possess or own would not
have a material adverse effect on the condition, financial or
otherwise, or on the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise.
(xix) No authorization, approval or consent of any court
or governmental authority or agency is required that has not been
obtained in connection with the consummation by the Company of the
transactions contemplated by this Agreement, the applicable Terms
Agreement, any Warrant Agreement or any Deposit Agreement, except
such as may be required under the 1933 Act or the 1933 Act
Regulations, state securities laws or real estate syndication laws.
(xx) The Company and its subsidiaries possess such
certificates, authorities or permits issued by the appropriate
state, federal or foreign regulatory agencies or bodies necessary
to conduct the business now operated by them, other than those the
failure to possess or own would not have a material adverse effect
on the condition, financial or otherwise, or on the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, and neither the Company
nor any of its subsidiaries has received any notice of proceeding
relating to the revocation or modification of any such certificate,
authority or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would
materially and adversely affect the condition, financial or
otherwise, or the earnings, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise.
(xxi) The Company has full corporate power and authority
to enter into this Agreement, the applicable Terms Agreement and
the Delayed Delivery Contracts, if any, and this Agreement has
been, and as of each Representation Date, the applicable Terms
Agreement and the Delayed Delivery Contracts, if any, will have
been, duly authorized, executed and delivered by the Company.
(xxii) The documents incorporated or deemed to be
incorporated by reference in the Prospectus, at the time they were
or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the 1934
Act and the rules and regulations of the Commission under the 1934
Act (the "1934 Act Regulations"), and, when read together with the
other information in the Prospectus, at the time the Registration
Statement became effective and as of the applicable Representation
Date or during the period specified in Section 3(f), did not and
will not
include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(xxiii) Except as otherwise disclosed in the Prospectus
and except as would not have a material adverse effect on the
condition, financial or otherwise, or on the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise: (i) all properties and assets
described in the Prospectus are owned with good and marketable
title by the Company, its subsidiaries and/or a joint venture or
partnership in which any such party is a participant (a "Related
Entity"); (ii) all of the leases under which any of the Company,
its subsidiaries or, to the knowledge of the Company, Related
Entities holds or uses real properties or assets as a lessee are in
full force and effect, and neither the Company, nor any of its
subsidiaries or, to the knowledge of the Company, Related Entities
is in material default in respect of any of the terms or provisions
of any of such leases and no claim has been asserted by anyone
adverse to any such party's rights as lessee under any of such
leases, or affecting or questioning any such party's right to the
continued possession or use of the leased property or assets under
any such leases; (iii) all liens, charges, encumbrances, claims or
restrictions on or affecting the properties and assets of any of
the Company, its subsidiaries or Related Entities which are
required to be disclosed in the Prospectus are disclosed therein;
(iv) neither the Company, nor any of its subsidiaries or, to the
knowledge of the Company, Related Entities nor any lessee of any
portion of any such party's properties is in default under any of
the leases pursuant to which any of the Company, its subsidiaries
or, to the knowledge of the Company, Related Entities leases its
properties and neither the Company, nor any of its subsidiaries or
Related Entities knows of any event which, but for the passage of
time or the giving of notice, or both, would constitute a default
under any of such leases; (v) no tenant under any of the leases
pursuant to which any of the Company, or its subsidiaries or, to
the knowledge of the Company, Related Entities leases its
properties has an option or right of first refusal to purchase the
premises demised under such lease; (vi) each of the properties of
any of the Company or, to the knowledge of the Company, its
subsidiaries or Related Entities complies with all applicable codes
and zoning laws and regulations; and (vii) neither the Company nor
any of its subsidiaries has knowledge of any pending or threatened
condemnation, zoning change or other proceeding or action that will
in any manner affect the size of, use of, improvements on,
construction on, or access to the properties of any of the Company,
or its subsidiaries or Related Entities.
(xxiv) Title insurance in favor of the mortgagee or the
Company, its subsidiaries and/or their Related Entities is
maintained with respect to each shopping center property owned by
any such entity in an amount at least equal to (a) the cost of
acquisition of such property or (b) the cost of construction of
such property (measured at the time of such construction), except,
in each case, where the failure to maintain such title insurance
would not have a material adverse effect on the condition,
financial or otherwise, or on the earnings, business affairs or
business prospects of the Company and its subsidiaries considered
as one enterprise.
(xxv) The mortgages and deeds of trust encumbering the
properties and assets described in the Prospectus are not
convertible nor does any of the Company, or its subsidiaries hold a
participating interest therein.
(xxvi) Each of the partnership and joint venture
agreements to which the Company or any of its subsidiaries is a
party, and which relates to real property described in the
Prospectus, has been duly authorized, executed and delivered by
such applicable party and constitutes the valid agreement thereof,
enforceable in accordance with its terms, except as limited by (a)
the effect of bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to or
affecting the rights or remedies of creditors or (b) the effect of
general principles of equity, whether enforcement is considered in
a proceeding in equity or at law, and the discretion of the court
before which any proceeding therefor may be brought, and the
execution, delivery and performance of any of such agreements did
not, at the time of execution and delivery, and does not constitute
a breach of, or default under, the charter or by-laws of such party
or any material contract, lease or other instrument to which such
party is a party or by which its properties may be bound or any
law, administrative regulation or administrative or court order or
decree.
(xxvii) None of the Company, or any of its subsidiaries
has any knowledge of (a) the unlawful presence of any hazardous
substances, hazardous materials, toxic substances or waste
materials (collectively, "Hazardous Materials") on any of the
properties owned by it or the Related Entities, or (b) any unlawful
spills, releases, discharges or disposal of Hazardous Materials
that have occurred or are presently occurring off such properties
as a result of any construction on or operation and use of such
properties which presence or occurrence would have a material
adverse effect on the condition, financial or otherwise, or on the
earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise; and in connection
with the construction on or operation and use of the properties
owned by the Company, its subsidiaries and Related Entities, each
of the Company, and its subsidiaries represents that, as of each
Representation Date, it has no knowledge of any material failure to
comply with all applicable local, state and federal environmental
laws, regulations, ordinances and administrative and judicial
orders relating to the generation, recycling, reuse, sale, storage,
handling, transport and disposal of any Hazardous Materials.
(b) Any certificate signed by any officer of the Company and
delivered to you or to counsel for the Underwriters in connection with the
offering of the Underwritten Securities shall be deemed a representation and
warranty by the Company to each Underwriter participating in such offering
as to the matters covered thereby on the date of such certificate and,
unless subsequently amended or supplemented, at each Representation Date
subsequent thereto.
Section 2. Purchase and Sale. (a) several commitments of the
Underwriters to purchase the Underwritten Securities pursuant to the
applicable Terms Agreement shall be deemed to have been made on the basis of
the representations and warranties herein contained and shall be subject to
the terms and conditions herein set forth.
(b) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth,
the Company may grant, if so provided in the applicable Terms Agreement
relating to the Initial Underwritten Securities, an option to the
Underwriters named in such Terms Agreement, severally and not jointly, to
purchase up to the number of Option Securities set forth therein at a price
per Option Security equal to the price per Initial Underwritten Security,
less an amount equal to any dividends declared by the Company and paid or
payable on the Initial Underwritten Securities but not on the Option
Underwritten Securities. Such option, if granted, will expire 30 days or
such lesser number of days as may be specified in the applicable Terms
Agreement after the Representation Date relating to the Initial Underwritten
Securities, and may be exercised in whole or in part from time to time only
for the purpose of covering over-allotments which may be made in connection
with the offering and distribution of the Initial Underwritten Securities
upon notice by you to the Company setting forth the number of Option
Securities as to which the several Underwriters are then exercising the
option and the time, date and place of payment and delivery for such Option
Securities. Any such time and date of delivery (a "Date of Delivery") shall
be determined by you, but shall not be later than three full business days
and not be earlier than two full business days after the exercise of said
option, unless otherwise agreed upon by you and the Company. If the option
is exercised as to all or any portion of the Option Securities, each of the
Underwriters, acting severally and not jointly, will purchase that
proportion of the total number of Option Securities then being purchased
which the number of Initial Underwritten Securities each such Underwriter
has severally agreed to purchase as set forth in the applicable Terms
Agreement bears to the total number of Initial Underwritten Securities
(except as otherwise provided in the applicable Terms Agreement), subject to
such adjustments as you in your discretion shall make to eliminate any sales
or purchases of fractional Initial Underwritten Securities.
(c) Payment of the purchase price for, and delivery of, the
Underwritten Securities to be purchased by the Underwriters shall be made at
the office of Xxxxxxx and Xxxxxx, 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000, or at such other place as shall be agreed upon by you and the
Company, at 10:00 A.M., New York City time, on the third business day
(unless postponed in accordance with the provisions of Section 10) following
the date of the applicable Terms Agreement or, if pricing takes place after
4:30 p.m., New York City time, on the date of the applicable Terms
Agreement, on the fourth business day (unless postponed in accordance with
the provisions of Section 10) following the date of the applicable Terms
Agreement or at such other time as shall be agreed upon by you and the
Company (each such time and date being referred to as a "Closing Time"). In
addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and
delivery of certificates representing, such Option Securities, shall be made
at the above-mentioned offices of Xxxxxxx and Xxxxxx, or at such other place
as shall be agreed upon by you and the Company on each Date of Delivery as
specified in the notice from you to the Company. Unless otherwise specified
in the applicable Terms Agreement, payment shall be made to the Company by
wire transfer or certified or official bank check or checks in Federal or
similar same-day funds payable to the order of the Company against delivery
to you for the respective accounts of the Underwriters for the Underwritten
Securities to be purchased by them. The Underwritten Securities or, if
applicable, Depositary Receipts evidencing the Depositary Shares, shall be
in such authorized denominations and registered in such names as you may
request in writing at least one business
day prior to the applicable Closing Time or Date of Delivery, as the case
may be. The Underwritten Securities, which may be in temporary form, will be
made available for examination and packaging by you on or before the first
business day prior to the Closing Time or Date of Delivery, as the case may
be.
If authorized by the applicable Terms Agreement, the Underwriters
named therein may solicit offers to purchase Underwritten Securities from
the Company pursuant to delayed delivery contracts ("Delayed Delivery
Contracts") substantially in the form of Exhibit B hereto with such changes
therein as the Company may approve. As compensation for arranging Delayed
Delivery Contracts, the Company will pay to you at Closing Time, for the
respective accounts of the Underwriters, a fee specified in the applicable
Terms Agreement for each of the Underwritten Securities for which Delayed
Delivery Contracts are made at the Closing Time as is specified in the
applicable Terms Agreement. Any Delayed Delivery Contracts are to be with
institutional investors of the types described in the Prospectus. At the
Closing Time, the Company will enter into Delayed Delivery Contracts (for
not less than the minimum number of Underwritten Securities per Delayed
Delivery Contract specified in the applicable Terms Agreement) with all
purchasers proposed by the Underwriters and previously approved by the
Company as provided below, but not for an aggregate number of Underwritten
Securities in excess of that specified in the applicable Terms Agreement.
The Underwriters will not have any responsibility for the validity or
performance of Delayed Delivery Contracts.
You shall submit to the Company, at least two business days prior
to the Closing Time, the names of any institutional investors with which it
is proposed that the Company will enter into Delayed Delivery Contracts and
the number of Underwritten Securities to be purchased by each of them, and
the Company will advise you, at least two business days prior to the Closing
Time, of the names of the institutions with which the making of Delayed
Delivery Contracts is approved by the Company and the number of Underwritten
Securities to be covered by each such Delayed Delivery Contract.
The number of Underwritten Securities agreed to be purchased by the
several Underwriters pursuant to the applicable Terms Agreement shall be
reduced by the number of Underwritten Securities covered by Delayed Delivery
Contracts, as to each Underwriter as set forth in a written notice delivered
by you to the Company; provided, however, that the total number of
Underwritten Securities to be purchased by all Underwriters shall be the
total number of Underwritten Securities covered by the applicable Terms
Agreement, less the number of Underwritten Securities covered by Delayed
Delivery Contracts.
Section 3. Covenants of the Company. The Company covenants with
you, and with each Underwriter participating in the offering of Underwritten
Securities, as follows:
(a) If the Company does not elect to rely on Rule 434 under the
1933 Act Regulations, immediately following the execution of the applicable
Terms Agreement, the Company will prepare a Prospectus Supplement setting
forth the number of Underwritten Securities covered thereby and their terms
not otherwise specified in the Prospectus pursuant to which the Underwritten
Securities are being issued, the names of the Underwriters participating in
the offering and the number of Underwritten Securities which each severally
has agreed to
purchase, the names of the Underwriters acting as co-managers in connection
with the offerings, the price at which the Underwritten Securities are to be
purchased by the Underwriters from the Company, the initial public offering
price, if any, the selling concession and reallowance, if any, any delayed
delivery arrangements, and such other information as you and the Company
deem appropriate in connection with the offering of the Underwritten
Securities; and the Company will promptly transmit copies of the Prospectus
Supplement to the Commission for filing pursuant to Rule 424(b) of the 1933
Act Regulations and will furnish to the Underwriters named therein as many
copies of the Prospectus (including such Prospectus Supplement) as you shall
reasonably request. If the Company elects to rely on Rule 434 under the 1933
Act Regulations, immediately following the execution of the applicable Terms
Agreement, the Company will prepare an abbreviated term sheet that complies
with the requirements of Rule 434 under the 1933 Act Regulations and will
provide the Underwriters with copies of the form of Rule 434 Prospectus, in
such number as you shall reasonably request, and promptly file or transmit
for filing with the Commission the form of Prospectus complying with Rule
434(c)(2) of the 1933 Act Regulations in accordance with Rule 424(b) of the
1933 Act Regulations.
(b) The Company will notify you immediately, and confirm such
notice in writing, of (i) the effectiveness of any amendment to the
Registration Statement, (ii) the transmittal to the Commission for filing of
any Prospectus Supplement or other supplement or amendment to the Prospectus
or any document to be filed pursuant to the 1934 Act, (iii) the receipt of
any comments from the Commission, (iv) any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (v) the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose; and the Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(c) At any time when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act in connection with sales of the
Underwritten Securities, the Company will give you notice of its intention
to file or prepare any amendment to the Registration Statement or any
amendment or supplement to the Prospectus, whether pursuant to the 1933 Act,
1934 Act or otherwise (including any revised prospectus which the Company
proposes for use by the Underwriters in connection with an offering of
Underwritten Securities which differs from the Prospectus on file at the
Commission at the time the Registration Statement first becomes effective,
whether or not such revised prospectus is required to be filed pursuant to
Rule 424(b) of the 1933 Act Regulations, or any abbreviated term sheet
prepared in reliance on Rule 434 of the 1933 Act Regulations), and will
furnish you with copies of any such amendment or supplement or other
documents proposed to be filed or used a reasonable amount of time prior to
such proposed filing or use, as the case may be, and will not file any such
amendment or supplement or other documents in a form to which you or counsel
for the Underwriters shall reasonably object.
(d) The Company will deliver to each Underwriter as many signed and
conformed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated
by reference therein and documents incorporated or deemed to be incorporated
by reference therein) as such Underwriter reasonably requests.
(e) The Company will furnish to each Underwriter, from time to time
during the period when the Prospectus is required to be delivered under the
1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities, such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request for the purposes
contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the
1934 Act Regulations.
(f) If at any time when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act in connection with sales of the
Underwritten Securities any event shall occur or condition exist as a result
of which it is necessary, in the opinion of counsel for the Underwriters or
counsel for the Company, to amend or supplement the Prospectus in order that
the Prospectus will not include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the
time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of either such counsel, at any such time to amend or supplement the
Registration Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, then the Company
will promptly prepare and file with the Commission such amendment or
supplement, whether by filing documents pursuant to the 1933 Act, the 1934
Act or otherwise, as may be necessary to correct such untrue statement or
omission or to make the Registration Statement and Prospectus comply with
such requirements.
(g) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Underwritten Securities, the Warrant
Securities, if any, and the shares of Common Stock issuable upon conversion
of the Preferred Shares or the Depositary Shares, if any, for offering and
sale under the applicable securities laws and real estate syndication laws
of such states and other jurisdictions of the United States as you may
designate. In each jurisdiction in which the Underwritten Securities, the
Warrant Securities, if any, and the shares of Common Stock issuable upon
conversion of the Preferred Shares or the Depositary Shares, if any, have
been so qualified, the Company will file such statements and reports as may
be required by the laws of such jurisdiction to continue such qualification
in effect for so long as may be required for the distribution of the
Underwritten Securities and the Warrant Securities, if any; provided,
however, that the Company shall not be obligated to qualify as a foreign
corporation in any jurisdiction where it is not so qualified.
(h) With respect to each sale of Underwritten Securities, the
Company will make generally available to its security holders as soon as
practicable, but not later than 90 days after the close of the period
covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 of the 1933 Act Regulations) covering a twelve-month
period beginning not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in such Rule 158) of
the Registration Statement.
(i) The Company will use its best efforts to meet the requirements
to qualify as a "real estate investment trust" under the Code for the
taxable year in which sales of the Underwritten Securities are to occur.
(j) The Company, during the period when the Prospectus is required
to be delivered under the 1933 Act or the 1934 Act in connection with sales
of the Underwritten Securities, will file all documents required to be filed
with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within
the time period prescribed by the 1934 Act and the 1934 Act Regulations.
(k) If the Preferred Shares or Depositary Shares are convertible
into shares of Common Stock or if Common Stock Warrants are issued, the
Company will reserve and keep available at all times, free of preemptive or
other similar rights, a sufficient number of shares of Common Stock or
Preferred Shares, as the case may be, for the purpose of enabling the
Company to satisfy any obligations to issue such shares upon conversion of
the Preferred Shares or the Depositary Shares, as the case may be, or upon
exercise of the Common Stock Warrants.
(l) If the Underwritten Securities are Common Stock, the Company
will use its best efforts to list such shares of Common Stock on the New
York Stock Exchange or such other national securities exchange on which the
Company's shares of Common Stock are then listed. If the Preferred Shares or
Depository Shares are convertible into shares of Common Stock, the Company
will use its best efforts to list the shares of Common Stock issuable upon
conversion of the Preferred Shares or Depositary Shares on the New York
Stock Exchange or such other national securities exchange on which the
Company's shares of Common Stock are then listed.
(m) The Company has complied and will comply with the provisions of
Florida H.B. 1771, codified as Section 517.075 of the Florida Statutes,
1987, as amended, and all regulations thereunder relating to issuers doing
business with Cuba.
Section 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement or the
applicable Terms Agreement, including (i) the printing and filing of the
Registration Statement as originally filed and of each amendment thereto,
(ii) the printing and filing of this Agreement and the applicable Terms
Agreement, (iii) the preparation, issuance and delivery of the Underwritten
Securities to the Underwriters and the Warrant Securities, if any, (iv) the
fees and disbursements of the Company's counsel and accountants, (v) the
qualification of the Underwritten Securities, the Warrant Securities, if
any, and the shares of Common Stock issuable upon conversion of the
Preferred Shares or the Depositary Shares, if any, under securities laws and
real estate syndication laws in accordance with the provisions of Section
3(g), including filing fees and the fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the
preparation of the Blue Sky Survey, (vi) the printing and delivery to the
Underwriters of copies of the Registration Statement as originally filed and
of each amendment thereto, and of the Prospectus and any amendments or
supplements thereto, including each abbreviated term sheet delivered by the
Company pursuant to Rule 434 of the 1933 Act Regulations, (vii) the printing
and delivery to the Underwriters of copies of the applicable Deposit
Agreement, if any, and the applicable Warrant Agreement, if any, (viii) any
fees charged by nationally recognized statistical rating organizations for
the rating of the Securities, (ix) the fees and expenses, if any, incurred
with respect to the listing of the Underwritten Securities, the Warrant
Securities, if any, or the shares of Common Stock issuable upon conversion
of the Preferred Shares or the Depositary Shares, if any, on any national
securities exchange, and (x) the
fees and expenses, if any, incurred with respect to any filing with the
National Association of Securities Dealers, Inc.
If the applicable Terms Agreement is terminated by you in
accordance with the provisions of Section 5 or Section 9(b)(i), the Company
shall reimburse the Underwriters named in such Terms Agreement for all of
their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
Section 5. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase Underwritten Securities pursuant
to the applicable Terms Agreement are subject to the accuracy of the
representations and warranties of the Company herein contained, to the
accuracy of the statements of the Company's officers made in any certificate
pursuant to the provisions hereof, to the performance by the Company of all
of its covenants and other obligations hereunder, and to the following
further conditions:
(a) At Closing Time, (i) no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, (ii) if
Preferred Shares or Depositary Shares are being offered, the rating assigned
by any nationally recognized statistical rating organization to any
preferred stock of the Company as of the date of the applicable Terms
Agreement shall not have been lowered since such date nor shall any such
rating organization have publicly announced that it has placed any preferred
stock of the Company on what is commonly termed a "watch list" for possible
downgrading, (iii) there shall not have come to your attention any facts
that would cause you to believe that the Prospectus, together with the
applicable Prospectus Supplement, at the time it was required to be
delivered to purchasers of the Underwritten Securities, included an untrue
statement of a material fact or omitted to state a material fact necessary
in order to make the statements therein, in light of the circumstances
existing at such time, no misleading and (iv) the Underwritten Securities or
the Common Stock issuable upon conversion thereof, as applicable in
accordance with Section 3(m) hereof, shall have been duly listed in
accordance with such Section 3(m).
(b) At Closing Time, you shall have received:
(1) The favorable opinion, dated as of Closing Time, of
Xxxxxx & Xxxxxxx, counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation under the laws of the
State of Maryland and is in good standing with the State
Department of Assessments and Taxation of Maryland.
(ii) The Company has corporate power and
authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus.
(iii) The Company is duly qualified as a foreign
corporation to transact business and is in good standing
in each jurisdiction in which it owns or leases
real property, except where the failure to so qualify
would not have a material adverse effect on the condition,
financial or otherwise, or on the earnings, business
affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(iv) The authorized, issued and outstanding stock
of the Company is as set forth in the Prospectus under
"Capitalization" or in the latest balance sheet
incorporated by reference therein (except for subsequent
issuances, if any, pursuant to reservations, agreements,
employee benefit plans, dividend reinvestment plans or
employee and director stock option plans referred to in
the Prospectus or otherwise referred to in the
Prospectus); and the outstanding capital stock of the
Company has been duly authorized, validly issued, fully
paid and non-assessable and is not subject to preemptive
or other similar rights arising by operation of law or, to
the best of such counsel's knowledge otherwise.
(v) The Underwritten Securities being sold
pursuant to the applicable Terms Agreement and, if
applicable, the deposit of the Preferred Shares in
accordance with the provisions of a Deposit Agreement,
have been duly and validly authorized by all necessary
corporate action and such Underwritten Securities have
been duly authorized for issuance and sale pursuant to
this Agreement and such Underwritten Securities, when
issued and delivered by the Company pursuant to this
Agreement against payment of the consideration set forth
in the applicable Terms Agreement or any Delayed Delivery
Contract, will be validly issued, fully paid and
non-assessable and will not be subject to preemptive or
other similar rights arising by operation of law or, to
the best of such counsel's knowledge, otherwise; and the
Preferred Shares, if applicable, conform to the provisions
of the Articles Supplementary.
(vi) If applicable, the Common Stock Warrants
have been duly authorized and, when issued and delivered
pursuant to this Agreement and countersigned by the
Warrant Agent as provided in the Warrant Agreement, will
have been duly executed, countersigned, issued and
delivered and will constitute valid and legally binding
obligations of the Company entitled to the benefits
provided by the Warrant Agreement under which they are to
be issued.
(vii) If applicable, the shares of Common Stock
issuable upon conversion of any of the Preferred Shares or
Depositary Shares, or the exercise of Warrant Securities,
have been duly and validly authorized and reserved for
issuance upon such conversion or exercise by all necessary
corporate action on the part of the Company and such
shares, when issued upon such conversion or exercise in
accordance with the charter of the Company, the Deposit
Agreement, the Terms Agreement, the Delayed Delivery
Contract or the Warrant Agreement, as the case may be,
will be duly and validly issued and will be fully paid and
non-assessable, and the issuance of such shares upon such
conversion or exercise will not be subject to preemptive
or other similar rights arising by operation of law or, to
the best of such counsel's knowledge, otherwise.
(viii) The applicable Warrant Agreement, if any,
and the applicable Deposit Agreement, if any, have been
duly authorized, executed and delivered by the Company,
and (assuming due authorization, execution and delivery by
the Warrant Agent in the case of the Warrant Agreement,
and the Depositary, in the case of the Deposit Agreement)
each constitutes a valid and legally binding agreement of
the Company enforceable in accordance with its terms; and
the Warrant Agreement, if any, and the Deposit Agreement,
if any, conforms in all material respects to all
statements relating thereto contained in the Prospectus.
(ix) If applicable, upon execution and delivery
of the Depositary Receipts pursuant to the terms of the
Deposit Agreement, the persons in whose names such
Depositary Receipts are registered will be entitled to the
rights specified therein and in the Deposit Agreement.
(x) Each of this Agreement, the applicable Terms
Agreement and the Delayed Delivery Contracts, if any, has
been duly authorized, executed and delivered by the
Company.
(xi) The Registration Statement is effective
under the 1933 Act and, to the best of such counsel's
knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued under the 1933
Act or proceedings therefor initiated or threatened by the
Commission.
(xii) The Registration Statement and the
Prospectus, excluding the documents incorporated by
reference therein, as of their respective effective or
issue dates, comply as to form in all material respects
with the requirements for registration statements on Form
S-3 under the 1933 Act and the 1933 Act Regulations; it
being understood, however, that no opinion need be
rendered with respect to the financial statements,
schedules and other financial and statistical data
included or incorporated by reference in the Registration
Statement or the Prospectus; it being understood, further,
that in passing upon the compliance as to form of the
Registration Statement and the prospectus, such counsel
may assume that the statements made therein are correct
and complete. If applicable, the Rule 434 Prospectus
conforms in all material respects to the requirements of
Rule 434 under the 1933 Act Regulations.
(xiii) Each document filed pursuant to the 1934
Act and incorporated or deemed to be incorporated by
reference in the Prospectus (other than the financial
statements, schedules and other financial and statistical
data included therein, as to which no opinion need be
rendered) complied when so filed as to form in all
material respects with the 1934 Act and the 1934 Act
Regulations. In passing upon compliance as to form of such
documents, such counsel may assume that the statements
made therein are correct and complete.
(xiv) If applicable, the relative rights
preferences, interests and powers of the Preferred Shares
or Depositary Shares, as the case may be, are as set forth
in the Articles Supplementary relating thereto, and all
such provisions are valid under the Maryland General
Corporation Law ("MGCL"); and, as applicable, the form of
certificate used to evidence Preferred Shares being
represented by the Depositary Shares and the form of
certificate used to evidence the related Depositary
Receipts are in due and proper form under the MGCL and
comply with all applicable statutory requirements under
the MGCL.
(xv) The Underwritten Securities, the Warrant
Securities, and the shares of Common Stock issuable upon
conversion of the Preferred Shares or Depositary Shares,
if applicable, conform in all material respects to the
statements relating thereto contained in the Prospectus.
(xvi) No authorization, approval or consent of
any court or governmental authority or agency is required
that has not been obtained in connection with the
consummation by the Company of the transactions
contemplated by this Agreement, the applicable Terms
Agreement, the applicable Deposit Agreement, if any, or
the applicable Warrant Agreement, if any, except such as
may be required under the 1933 Act, 1934 Act and state
securities laws or real estate syndication laws.
(xvii) Neither the Company nor any of its
subsidiaries is required to be registered under the 0000
Xxx.
(xviii) Commencing with the Company's taxable
year beginning January 1, 1992, the Company has been
organized in conformity with the requirements for
qualification as a "real estate investment trust," and its
method of operation will enable it to meet the
requirements for qualification and taxation as a "real
estate investment trust" under the Code, provided that
such counsel's opinion as to this matter shall be
conditioned upon certain representations as to factual
matters made by the Company to such counsel as described
therein.
(xix) The statements set forth (a) in the
Prospectus under the caption "Certain Federal Income Tax
Considerations to the Company of its REIT Election" and
(b) in the Prospectus Supplement under the caption
"Certain Federal Income Tax Considerations," to the extent
such statements constitute matters of law, summaries of
legal matters, or legal conclusions, have been reviewed by
them and are accurate in all material respects.
The opinions rendered in (vi), (viii) and (ix) of
subsection (b)(1) are subject to the following exceptions,
limitations and qualifications: (i) the effect of bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting the rights and
remedies of creditors; and (ii) the effect of general principles of
equity, whether enforcement is considered in a proceeding in equity
or at law, and the discretion of the court before which any
proceeding therefor may be brought.
(2) The favorable opinion, dated as of Closing Time, of
Xxxxxx X. Xxxxxxxx, Esq., counsel for the Company, or other counsel
satisfactory to the Underwriters, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(i) To the best of his knowledge and information,
there are no legal or governmental proceedings pending or
threatened which are required to be disclosed in the
Prospectus, other than those disclosed therein, and all
pending legal or governmental proceedings to which the
Company or any of its subsidiaries is a party or of which
any of the property of the Company or its subsidiaries is
the subject which are not described in the Prospectus,
including ordinary routine litigation incidental to the
business, are, considered in the aggregate, not material.
(ii) To the best of his knowledge and
information, there are no contracts, indentures,
mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the
Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement other than those
described or referred to therein or filed as exhibits
thereto, the descriptions thereof or references thereto
are correct, and, to the best of his knowledge and
information, no default exists in the due performance or
observance of any material obligation, agreement, covenant
or condition contained in any contract, indenture,
mortgage (except as otherwise described in the
Prospectus), loan agreement, note, lease or other
instrument so described, referred to or filed which would
have a material adverse effect on the condition, financial
or otherwise, or on the earnings, business or business
prospects of the Company and its subsidiaries considered
as one enterprise.
(iii) To the best of his knowledge and
information, the execution and delivery of this Agreement,
the applicable Terms Agreement, the applicable Deposit
Agreement, if any, or the applicable Warrant Agreement, if
any, and the consummation of the transactions contemplated
herein and therein and compliance by the Company with its
obligations hereunder and thereunder will not conflict
with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company
or any of its subsidiaries pursuant to any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any of its subsidiaries
is a party or by which it or any of them may be bound or
to which any of the property or assets of the Company or
any of its subsidiaries is subject, nor will such action
result in violation of the provisions of the charter or
by-laws of the Company or any applicable law,
administrative regulation or administrative or court order
or decree.
(iv) Each of the partnership and joint venture
agreements to which the Company or any of its subsidiaries
is a party, and which relates to real property described
in the Prospectus, has been duly authorized, executed and
delivered by such applicable party and constitutes the
valid agreement thereof, enforceable in
accordance with its terms, except as limited by bankruptcy
and general equitable principles and the execution,
delivery and performance of any of such agreements did
not, at the time of execution and delivery, and does not
constitute a breach of, or default under, the charter or
by-laws of such party or any material contract, lease or
other instrument to which such party is a party or by
which its properties may be bound or any law,
administrative regulation or administrative or court order
or decree.
(v) The Company, its subsidiaries and the Related
Entities hold title to the properties and assets described
in the Prospectus, subject only to the liens and
encumbrances securing indebtedness reflected in the
Prospectus and such other liens, encumbrances and matters
of record which do not materially and adversely affect the
value of such properties and assets considered in the
aggregate.
(vi) Each Significant Subsidiary of the Company
has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and,
to the best of his knowledge and information, is duly
qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which its
owns or leases real property, except where the failure to
so qualify would not have a material adverse effect on the
condition, financial or otherwise, or on the earnings,
business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise; and all of
the issued and outstanding capital stock of each such
Significant Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and, to
the best of his knowledge and information, is owned by the
Company, directly or through subsidiaries, free and clear
of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity, except for security
interests granted in respect of indebtedness of the
Company or any of its subsidiaries and described in the
Prospectus.
(3) The favorable opinion, dated as of Closing Time, of
Xxxxxxx and Xxxxxx, counsel for the Underwriters in form and
substance satisfactory to the Underwriters.
(4) In giving their opinions required by subsections
(b)(1) and (b)(3), respectively, of this Section, Xxxxxx & Xxxxxxx,
(or other counsel satisfactory to the Underwriters) and Xxxxxxx and
Xxxxxx shall each additionally state that nothing has come to their
attention that would lead them to believe that the Registration
Statement or any amendment thereto, at the time it became effective
(or, if an amendment to the Registration Statement or an Annual
Report on Form 10-K has been filed by the Company with the
Commission subsequent to the effectiveness of the Registration
Statement, then at the time such amendment becomes effective or at
the time of the most recent filing of such Annual Report, as the
case may be) or at the date of the applicable Terms Agreement,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in
order to make the statements
therein not misleading or that the Prospectus, at the date of the
applicable Terms Agreement or at Closing Time, included or includes
an untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; it being understood that no opinion need be rendered
with respect to the financial statements, schedules and other
financial and statistical data included in the Registration
Statement or the Prospectus. In giving their opinions, Xxxxxx &
Xxxxxxx, Xxxxxx X. Xxxxxxxx, Esq. (or other counsel satisfactory to
the Underwriters) and Xxxxxxx and Xxxxxx may rely, (1) as to
matters involving the laws of the State of Maryland upon the
opinion of Xxxxxxx Xxxxx Xxxxxxx & Ingersoll LLP (or other counsel
reasonably satisfactory to counsel for the Underwriters) in form
and substance satisfactory to counsel for the Underwriters, (2) as
to all matters of fact, upon certificates and written statements of
officers and employees of and accountants for the Company, and (3)
as to the qualification and good standing of the Company or any of
its subsidiaries to do business in any state or jurisdiction, upon
certificates of appropriate government officials or opinions of
counsel in such jurisdictions.
(c) At Closing Time, there shall not have been, since the date of
the applicable Terms Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business; and
you shall have received a certificate of the Chief Executive Officer, the
President or Vice President and the chief financial officer or chief
accounting officer of the Company, dated as of such Closing Time, to the
effect that (i) there has been no such material adverse change and (ii) the
representations and warranties in Section 1 are true and correct with the
same force and effect as through made on such Closing Time. As used in this
Section 5(c), the term "Prospectus" means the Prospectus in the form first
used by the Underwriters to confirm sales of the Underwritten Securities.
(d) At the time of execution of the applicable Terms Agreement, you
shall have received from Coopers & Xxxxxxx L.L.P. a letter dated such date,
in form and substance satisfactory to you, to the effect that (i) they are
independent accountants with respect to the Company within the meaning of
the 1933 Act and the 1933 Act Regulations thereunder; (ii) it is their
opinion that the consolidated financial statements and financial statement
schedules of the Company and the historical summaries of revenue and certain
operating expenses for the properties related thereto included or
incorporated by reference in the Registration Statement and the Prospectus
and audited by them and covered by their opinions therein comply as to form
in all material respects with the applicable accounting requires of the 1933
Act and the 1933 Act Regulations; (iii) they have performed limited
procedures, not constituting an audit, including a reading of the latest
available unaudited interim consolidated financial statements of the
Company, a reading of the minute books of the Company, inquiries of certain
officials of the Company who have responsibility for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, and on the basis of such limited review and
procedures nothing came to their attention that caused them to believe that
(A) any material modifications should be made to the unaudited financial
statements and financial statement schedules of the Company included or
incorporated by reference in the Registration Statement and the Prospectus
for them to be in conformity with generally accepted accounting principles,
(B) the unaudited financial statements and financial statement schedules of
the Company included or incorporated by reference in the Registration
Statement
and the Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the 1934 Act as it relates to Form
10-Q and the 1934 Act Regulations, (C) the unaudited operating data and
balance sheet data of the Company in the Registration Statement and the
Prospectus under the caption "Selected Consolidated Financial Data" were not
determined on a basis substantially consistent with that used in determining
the corresponding amounts in the audited financial statements included or
incorporated by reference in the Registration Statement and the Prospectus,
or (D) at a specified date not more than three days prior to the date of the
applicable Terms Agreement, there has been any change in the capital stock
of the Company or in the consolidated long-term debt of the Company or any
decrease in the net assets of the Company, as compared with the amounts
shown in the most recent consolidated balance sheet included or incorporated
by reference in the Registration Statement and the Prospectus or, during the
period from the date of the most recent consolidated statement of operations
included or incorporated by reference in the Registration Statement and the
Prospectus to a specified date not more than three days prior to the date of
the applicable Terms Agreement, there were any decreases, as compared with
the corresponding period in the preceding year, in consolidated revenues, or
decrease in net income or net income per share of the Company, except in all
instances for changes, increases or decreases which the Registration
Statement and the Prospectus disclose have occurred or may occur; and (iv)
in addition to the audit referred to in their opinions and the limited
procedures referred to in clause (iii) above, they have carried out certain
specified procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information which are included or
incorporated by reference in the Registration Statement and the Prospectus
and which are specified by you, and have found such amounts, percentages and
financial information to be in agreement with the relevant accounting,
financial and other records of the Company and its subsidiaries identified
in such letter.
(e) At Closing Time, you shall have received from Coopers & Xxxxxxx
L.L.P. a letter dated as of Closing Time to the effect that they reaffirm
the statements made in the letter furnished pursuant to subsection (d) of
this Section, except that the "specified date" referred to shall be a date
not more than three days prior to such Closing Time.
(f) At Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require
for the purpose of enabling them to pass upon the issuance and sale of the
Underwritten Securities and the Warrant Securities, if any, as herein
contemplated and related proceedings, or in order to evidence the accuracy
of any of the representations or warranties, or the fulfillment of any of
the conditions, herein contained; and all proceedings taken by the Company
in connection with the issuance and sale of the Underwritten Securities and
the Warrant Securities, if any, as herein contemplated shall be satisfactory
in form and substance to you and counsel for the Underwriters.
(g) In the event the Underwriters exercise their option provided in
a Terms Agreement as set forth in Section 2(b) hereof to purchase all or any
portion of the Option Securities, the representations and warranties of the
Company contained herein and the
statements in any certificates furnished by the Company hereunder shall be
true and correct as of each Date of Delivery, and, at the relevant Date of
Delivery, you shall have received:
(i) A certificate, dated such Date of Delivery, of the
Chief Executive Officer, the President or the chief financial or
chief accounting officer of the Company, in their capacities as
such, confirming that the certificate delivered at Closing Time
pursuant to Section 5(c) hereof remains true and correct as of such
Date of Delivery.
(ii) The favorable opinion of Xxxxxx & Xxxxxxx, counsel
for the Company, in form and substance satisfactory to counsel for
the Underwriters, dated such Date of Delivery, relating to the
Option Securities and otherwise substantially to the same effect as
the opinion required by Sections 5(b)(i) and 5(b)(iv) hereof.
(iii) The favorable opinion of Xxxxxx X. Xxxxxxxx, Esq.,
counsel for the Company, or other counsel satisfactory to the
Underwriters, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities and otherwise substantially to the same effect as the
opinion required by Sections 5(b)(ii) and 5(b)(iv) hereof.
(iv) The favorable opinion of Xxxxxxx and Xxxxxx, counsel
for the Underwriters, dated such Date of Delivery, relating to the
Option Securities and otherwise to the same effect as the opinion
required by Sections 5(b)(iii) and 5(b)(iv) hereof.
(v) A letter from Coopers & Xxxxxxx L.L.P., in form and
substance satisfactory to you and dated such Date of Delivery,
substantially the same in scope and substance as the letter
furnished to you pursuant to Section 5(d) hereof, except that the
"specified date" in the letter furnished pursuant to this Section
5(h)(v) shall be a date not more than three days prior to such Date
of Delivery.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, the applicable Terms
Agreement may be terminated by you by notice to the Company at any time at
or prior to the Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4
hereof.
Section 6. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the
information deemed to be part of the Registration Statement
pursuant to Rule 430A(b) or Rule 434 of the 1933 Act Regulations,
if applicable, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make
the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included
in the Prospectus (or any amendment or supplement
thereto) or the omission, or alleged omission therefrom, of a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission referred to in subsection (i) above, or any
such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever (including,
the fees and disbursements of counsel chosen by you), as incurred,
which was reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i)
or (ii) above;
provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through you expressly for use in the Registration
Statement (or any amendment thereto) and the Prospectus (or any amendment or
supplement thereto); provided further, that with respect to any preliminary
prospectus, such indemnity shall not inure to the benefit of any Underwriter
(or the benefit of any person controlling such Underwriter) if the person
asserting any such losses, liabilities, claims, damages or expenses
purchased the Underwritten Securities which are the subject thereof from
such Underwriter and if such person was not sent or given a copy of the
Prospectus (excluding any documents incorporated therein by reference) at or
prior to confirmation of the sale of such Underwritten Securities to such
person in any case where such sending or giving is required by the 1933 Act
and the untrue statement or omission of a material fact contained in such
preliminary prospects was corrected in the Prospectus and the Prospectus was
delivered to such Underwriter a reasonable amount of time prior to the date
of delivery of such confirmation.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the
Registration Statement and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act, against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through you
expressly for use in the Registration Statement (or any amendment thereto)
or the Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sough hereunder, but failure
to so notify an indemnifying party shall not relieve such indemnifying party
from any liability which it may have otherwise than on account of this
indemnity agreement. An indemnifying party may participate at its own
expense in the defense of such action. If it so elects within a reasonable
time after receipt of such notice, an indemnifying party, jointly with any
other indemnifying parties receiving such notice, may assume the defense of
such action with counsel chosen by it and approved by the indemnified
parties defendant in such action, unless such indemnified parties reasonably
object to such assumption on the ground that there may be legal defenses
available to them which are different from or in addition to those available
to such indemnifying party. If an indemnifying party assumes the defense of
such action, the indemnifying parties shall not be liable for any fees and
expenses of counsel for the indemnified parties incurred thereafter in
connection with such action. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any
local counsel) separate from their own counsel for all indemnified parties
in connection with any one action or separate but similar or related actions
in the same jurisdiction arising out of the same general allegations or
circumstances.
Section 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for
in Section 6 is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company and
the Underwriters with respect to the offering of the Underwritten Securities
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by
the Company and one or more of the Underwriters in respect of such offering,
as incurred, in such proportions that the Underwriters are responsible for
that portion represented by the percentage that the underwriting discount
appearing on the cover page of the Prospectus in respect of such offering
bears to the initial public offering price appearing thereon and the Company
is responsible for the balance; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
0000 Xxx) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. Notwithstanding the provisions
of this Section 7, no Underwriter shall be required to contribute any amount
in excess of the amount by which the total price at which the Underwritten
Securities purchased by it pursuant to the applicable Terms Agreement and
distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay in
respect of such losses, liabilities, claims, damages and expenses. For
purposes of this Section, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the 1933 Act shall have the same rights
to contribution as such Underwriter, and each director of the Company, each
officer of the Company who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of
the 1933 Act shall have the same rights to contribution as the Company.
Section 8. Representation, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or the applicable Terms Agreement, or contained in certificates of
officers of the Company submitted pursuant hereto, shall remain operative
and in full force and effect, regardless of any termination of this
Agreement or the applicable Terms Agreement, or investigation made by or on
behalf of any Underwriter or any controlling person, or by or on behalf of
the Company and shall survive delivery of and payment for the Underwritten
Securities.
Section 9. Termination of Agreement. (a) This Agreement, (excluding
the applicable Terms Agreement) may be terminated for any reason at any time
by the Company or by you upon the giving of 30 days' written notice of such
termination to the other party hereto.
(b) You may also terminate the applicable Terms Agreement, by
notice to the Company, at any time at or prior to the Closing Time if (i)
there has been, since the date of such Terms Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course
of business, or (ii) there has occurred any material adverse change in the
financial markets in the United States or any outbreak or escalation of
hostilities or other national or international calamity or crisis, the
effect of which is such as to make it, in your judgment, impracticable to
market the Underwritten Securities or enforce contracts for the sale of the
Underwritten Securities, or (iii) trading in any of the securities of the
Company has been suspended by the Commission or the New York Stock Exchange,
or if trading generally on either the New York Stock Exchange, the American
Stock Exchange or the Nasdaq National Market has been suspended, or minimum
or maximum prices for trading have been fixed, or maximum ranges for prices
for securities have been required, by either of said exchanges or by order
of the Commission or any other governmental authority, or if a banking
moratorium has been declared by Federal, New York or Maryland authorities,
or (iv) Preferred Shares or Depository Shares are being offered and the
rating assigned by any nationally recognized statistical rating organization
to any preferred stock of the Company as of the date of the applicable Terms
Agreement shall have been lowered since such date or if any such rating
organization shall have publicly announced that it has placed any preferred
stock of the Company on what is commonly termed a "watch list" for possible
downgrading. As used in this Section 9(b), the term "Prospectus" means the
Prospectus in the form first used by the Underwriters to confirm sales of
the Underwritten Securities.
(c) In the event of any such termination, (x) the covenants set
forth in Section 3 with respect to any offering of Underwritten Securities
shall remain in effect in so long as any Underwriter owns any such
Underwritten Securities purchased from the Company pursuant to the
applicable Terms Agreement and (y) the covenant set forth in Section 3(h)
hereof, the provisions of Section 4 hereof, the indemnity and contribution
agreements set forth in Sections 6 and 7 hereof, and the provisions of
Sections 8 and 13 hereof shall remain in effect.
Section 10. Default by One or More of the Underwriters. If one or
more of the Underwriters shall fail at the Closing Time to purchase the
Underwritten Securities which it or they are obligated to purchase under the
applicable Terms Agreement (the "Defaulted Securities"), then you shall have
the right, within 24 hours thereafter, to make arrangements for one or more
of the non-defaulting Underwriters, or any other underwriters, to purchase
all, but not less than all, of the Defaulted Securities in such amounts as
may be agreed upon and upon the
terms herein set forth; if however, you shall not have completed such
arrangements within such 24-hour period, then:
(a) if the total number of Defaulted Securities does not
exceed 10% of the total number of Underwritten Securities to be
purchased pursuant to such Terms Agreement, the non-defaulting
Underwriters named in such Terms Agreement shall be obligated to
purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the total number of Defaulted Securities exceeds
10% of the total number of Underwritten Securities to be purchased
pursuant to such Terms Agreement, the applicable Terms Agreement
shall terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default under this
Agreement and the applicable Terms Agreement.
In the event of any such default which does not result in a
termination of the applicable Terms Agreement, either you or the Company
shall have the right to postpone the Closing Time for a period not exceeding
seven days in order to effect any required changes in the Registration
Statement or the Prospectus or in any other documents or arrangements.
Section 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed c/o Xxxxxx X. Xxxxx & Co., L. P., 00000
Xxxxxxxxxx Xxxx, Xx. Xxxxx, XX 00000-0000 attention T. Xxxxxxx Xxxxx, Xx.,
and notices to the Company shall be directed to it at 3333 New Hyde Xxxx
Xxxx, Xxx Xxxx Xxxx, Xxx Xxxx 00000-0000, attention of Xxxxxx Xxxxxx,
Chairman of the Board.
Section 12. Parties. This Agreement and the applicable Terms
Agreement shall inure to the benefit of and be binding upon you and the
Company and any Underwriter who becomes a party of such Terms Agreement, and
their respective successors. Nothing expressed or mentioned in this
Agreement or the applicable Terms Agreement is intended or shall be
construed to give any person, firm or corporation, other than those referred
to in Sections 6 and 7 and their heirs and legal representatives, any legal
or equitable right, remedy or claim under or in respect of this Agreement or
such Terms Agreement or any provisions herein or therein contained. This
Agreement and the applicable Terms Agreement and all conditions and
provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the parties hereto and thereto and their respective successors
and said controlling persons and officers and directors and their heirs and
legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Underwritten Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
Section 13. Governing Law and Time. This Agreement and the
applicable Terms Agreement shall be governed by and construed in accordance
with the laws of the State of New
York applicable to agreements made and to be performed in said State.
Specified times of day refer to New York City time.
Section 14. Counterparts. This Agreement and the applicable Terms
Agreement may be executed in one or more counterparts, and if executed in
more than one counterpart the executed counterparts shall constitute a
single instrument.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement
between you and the Company in accordance with its terms.
Very truly yours,
Kimco Realty Corporation
By /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: VP/CFO
Confirmed and Accepted, as of the date first above written:
Xxxxxx X. Xxxxx & Co., L.P.
By /s/ T. Xxxxxxx Xxxxx, Xx.
-------------------------------
Name: T. Xxxxxxx Xxxxx, Xx.
Title: Principal
Exhibit A
Kimco Realty Corporation
(a Maryland Corporation)
Terms Agreement
Dated: , 19
------------ ---
To: Kimco Realty Corporation
0000 Xxx Xxxx Xxxx Xxxx
Xxxxx 000
New Hyde Park, New York 11042-0020
Attention: Chairman of the Board of Directors
Dear Sirs:
We (the "Underwriter") understand that Kimco Realty Corporation, a
Maryland corporation (the "Company"), proposes to issue and sell the number
of shares of
--------------------------------------------------------------
set forth below (the "Underwritten Securities"). Subject to the terms and
conditions set forth or incorporated by reference herein, we offer to
purchase the Initial Underwritten Securities (as defined in the Underwriting
Agreement referred to below) and a proportionate share of Option Securities
(as defined in the Underwriting Agreement) to the extent any are purchased,
at the purchase price set forth below.
The Underwritten Securities shall have the following terms:
Title of Securities:
------------------------------
Number of Shares:
-----------------
Public offering price per share: $
----------------
Purchase price per share: $
-------------------
Number of Option Securities:
--------------
Delayed Delivery Contracts:
------------
Closing date and location: , 19 ;
------------ -- ---------------------------
All the provisions contained in the document attached as Annex A
hereto entitled "Kimco Realty Corporation--Common Stock, Warrants to
Purchase Common Stock, Preferred Stock and Depositary Shares--Underwriting
Agreement" are hereby incorporated by reference in their entirety herein and
shall be deemed to be a part of this Terms Agreement to the same extent as
if such provisions had been set forth in full herein. Terms defined in such
document are used herein as therein defined.
Please accept this offer on , 19 , by signing a copy of this Terms
------- --
Agreement in the space set forth below and returning the signed copy to us.
Very truly yours,
Xxxxxx X. Xxxxx & Co., L.P.
By
Name:
Title:
Accepted:
Kimco Realty Corporation
By
Name:
Title:
