Exhibit 1.1
POST PROPERTIES,
INC.
UNDERWRITING
AGREEMENT
September 24, 2009
J.P. Morgan Securities
Inc.
Wells Fargo Securities, LLC
As Representatives of the
several Underwriters
listed
in Schedule 1
hereto
c/o J.P. Morgan Securities
Inc.
277 Park Avenue
New York, New York 10172
Ladies and Gentlemen:
Post Properties, Inc., a Georgia
corporation (the “ Company ”), and Post
Apartment Homes, L.P., a Georgia limited partnership (the “
Operating Partnership ”), confirm their agreement with
J.P. Morgan Securities Inc. and Wells Fargo Securities, LLC, and
each of the other Underwriters named in Schedule 1
hereto (collectively, the “ Underwriters, ”
which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof), for whom J.P.
Morgan Securities Inc. and Wells Fargo Securities, LLC are acting
as representatives (in such capacity, the “
Representatives ”), with respect to the issue and sale
by the Company and the purchase by the Underwriters, acting
severally and not jointly, of the respective principal amounts set
forth in said Schedule 1 of an aggregate of 3,500,000
shares of common stock, par value $ 0.01 per share, of the
Company (the “ Underwritten Shares ”) and, at
the option of the Underwriters, up to an additional 525,000 shares
of common stock, par value $0.01 per share, of the Company (the
“ Option Shares ”). The Underwritten Shares and
the Option Shares are herein referred to as the “
Shares ”.
The Company understands that the
Underwriters propose to make a public offering of the Shares as
soon as the Representatives deem advisable after this agreement
(the “ Agreement ”) has been executed and
delivered.
The Company and the Operating
Partnership have prepared and filed with the Securities and
Exchange Commission (the “ Commission ”) in
accordance with the provisions of the Securities Act of 1933, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the “ 1933 Act ”), a registration
statement (No. 333-139581) on Form S-3, relating to certain
securities (the “ Shelf Shares ”) to be issued
from time to time by the Company and the Operating Partnership. The
Company also has filed with, or proposes to file with, the
Commission pursuant to Rule 424 under the 1933 Act a
prospectus supplement specifically relating to the Shares. Such
registration statement, as amended at the time it became effective,
including the information, if any, deemed pursuant to 430B under
the 1933 Act to be part of the registration statement at the time
of its effectiveness (“ Rule 430B Information
”), is referred to herein as the “ Registration
Statement ”. The term “ Base Prospectus
” means the prospectus dated December 21, 2006 included
in the Registration Statement, including all information
incorporated by reference therein. The term “ Prospectus
Supplement ” means the prospectus supplement specifically
relating to the Shares in the form first filed with the Commission
pursuant to Rule 424 under the 1933 Act after the date and
time that this Agreement is executed and delivered by the parties
hereto, including all information incorporated by reference
therein. The term “Prospectus” means the Base
Prospectus together with the Prospectus Supplement. The term
“ Preliminary Prospectus ” means any preliminary
form of the
Prospectus in the form filed with the Commission
pursuant to Rule 424 of the 1933 Act Regulations. Any
reference in this Agreement to the Registration Statement, any
Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act, as of the
effective date of the Registration Statement or the date of such
Preliminary Prospectus or the Prospectus, as the case may be, and
any reference to “amend”, “amendment” or
“supplement” with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after such date
under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (collectively,
the “ 1934 Act ”) that are deemed to be
incorporated by reference therein. Capitalized terms used but not
defined herein shall have the meanings given to such terms in the
Registration Statement and the Prospectus.
At or prior to the time when sales
of the Shares were first made (the “ Time of Sale
”), the Company had prepared the following information
(collectively with the pricing information referred to in Annex
B , the “ Time of Sale Information ”): a
Preliminary Prospectus dated September 23, 2009, and each
“free-writing prospectus” (as defined pursuant to
Rule 405 under the 1933 Act) listed on Annex B
hereto.
SECTION 1. Representations and
Warranties . The Company and the Operating Partnership, jointly
and severally, represent and warrant to, and agree with, each
Underwriter, as follows:
(i) Compliance with Registration
Requirements . The Company and the Operating Partnership meet
the requirements for use of Form S-3 under the 1933 Act. The
Registration Statement is an “automatic shelf registration
statement” as defined under Rule 405 of the 1933 Act that has
been filed with the Commission not earlier than three years prior
to the date hereof; and no notice of objection of the Commission to
the use of such registration statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act has
been received by the Company. No stop order suspending the
effectiveness of the Registration Statement has been issued under
the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the
Commission for additional information has been duly complied with.
At the time that the Registration Statement became effective and as
of the Closing Date (as defined below) and the Additional Closing
Date (as defined below), as the case may be, the Registration
Statement, and any amendments and supplements thereto, complied and
will comply in all material respects with the requirements of the
1933 Act, and did not and 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. At the Time of Sale, the Time of Sale Information did
not include an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. As of the date of the Prospectus and any amendment or
supplement thereto and as of the Closing Date and the Additional
Closing Date, as the case may be, the Prospectus will not contain
any 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. 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 written information furnished
to the Company by any Underwriter through the Representatives
expressly for use in the Registration Statement (or any amendment
thereto) or to the Prospectus (or any amendment or supplement
thereto).
(ii) Incorporated Documents .
The documents incorporated by reference in the Registration
Statement, the Prospectus or the Time of Sale Information, when
they were filed with the Commission conformed in all material
respects to the requirements of the 1933 Act or the 1934 Act, as
applicable, and
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none of such documents contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
(iii) Preliminary Prospectus
. No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, complied in all material
respects with the 1933 Act.
(iv) Issuer Free Writing
Prospectus . Other than the Preliminary Prospectus and the
Prospectus, the Company (including its agents and representatives,
other than the Underwriters in their capacity as such) has not
made, used, prepared, authorized, approved or referred to and will
not prepare, make, use, authorize, approve or refer to any
“written communication” (as defined in Rule 405
under the 1933 Act) that constitutes an offer to sell or
solicitation of an offer to buy the Shares (each such communication
by the Company or its agents and representatives (other than a
communication referred to in clause (i) below) an “
Issuer Free Writing Prospectus ”) other than
(i) any document not constituting a prospectus pursuant to
Section 2(a)(10)(a) of the 1933 Act or Rule 134 under the
1933 Act or (ii) the documents listed on Annex B hereto
and other written communications approved in writing in advance by
the Representatives. Each such Issuer Free Writing Prospectus
complied in all material respects with the 1933 Act, has been filed
in accordance with the 1933 Act (to the extent required
thereby).
(v) Independent Accountants .
The accountants who certified the financial statements and
supporting schedules included in the Registration Statement are
independent public accountants with respect to the Company and its
subsidiaries within the applicable rules and regulations adopted by
the Commission and the Public Company Accounting Oversight Board
(United States).
(vi) Financial Statements .
The financial statements incorporated by reference in the
Registration Statement, the Time of Sale Information and the
Prospectus, together with the related schedules and notes, present
fairly in all material respects the financial position of the
Company and the Operating Partnership and their consolidated
subsidiaries at the dates indicated and the statement of
operations, shareholders’ or partners’ equity (as
applicable) and cash flows of the Company and the Operating
Partnership and their consolidated subsidiaries for the periods
specified; said financial statements have been prepared in
conformity with generally accepted accounting principles (“
GAAP ”) applied on a consistent basis throughout the
periods involved. The selected financial data and the summary
financial information included in the Prospectus present fairly the
information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included
in the Registration Statement.
(vii) Disclosure Controls .
The Company maintains an effective system of “disclosure
controls and procedures” (as defined in Rule 13a-15(e)
of the 1934 Act) that is designed to ensure that information
required to be disclosed by the Company in reports that it files or
submits under the 1934 Act is recorded, processed, summarized and
reported within the time periods specified in the
Commission’s rules and forms, including controls and
procedures designed to ensure that such information is accumulated
and communicated to the Company’s management as appropriate
to allow timely decisions regarding required disclosure. The
Company and its subsidiaries have carried out evaluations of the
effectiveness of their disclosure controls and procedures as
required by Rule 13a-15 of the 1934 Act.
(viii) Accounting Controls .
The Company maintains systems of “internal control over
financial reporting” (as defined in Rule 13a-15(f) of
the 1934 Act) that comply with the requirements of the 1934 Act and
have been designed by, or under the supervision of, their
respective principal executive and principal financial officers, or
persons performing similar functions, to provide reasonable
assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in
accordance with generally accepted accounting principles. The
Company maintains internal
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accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in
accordance with management’s general or specific
authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in
accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. Except
as disclosed in the Time of Sale Information, there are no material
weaknesses in the Company’s internal controls. The
Company’s auditors and the Audit Committee of the Board of
Directors of the Company have been advised of: (x) all
significant deficiencies and material weaknesses in the design or
operation of internal controls over financial reporting which have
adversely affected or are reasonably likely to adversely affect the
Company’s ability to record, process, summarize and report
financial information; and (y) any fraud, whether or not
material, that involves management or other employees who have a
significant role in the Company’s internal controls over
financial reporting.
(ix) No Material Adverse Change
in Business . Since the respective dates as of which
information is given in the Registration Statement, the Prospectus
and the Time of Sale Information, except as otherwise stated
therein, (A) there has been no material adverse change in the
financial condition, or in the earnings or business affairs of the
Company and its subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business (a “
Material Adverse Effect ”); (B) there have been
no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business,
which are material with respect to the Company and its subsidiaries
considered as one enterprise; and (C) there has been no
material change in the short-term debt or long-term debt of the
Company and its consolidated subsidiaries.
(x) Good Standing of the
Company . The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the
State of Georgia and has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus and the Time of Sale Information and to
enter into and perform its obligations under this Agreement; and
the Company is duly qualified as a foreign entity to transact
business and is in good standing in each other 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 so to qualify or to be in good standing could not
be reasonably expected to result in a Material Adverse
Effect.
(xi) Good Standing of Post
Apartment Homes, L.P. and Other Subsidiaries . (A) The
Operating Partnership has been duly organized and is validly
existing as a limited partnership in good standing under the laws
of the State of Georgia and has the limited partnership power and
authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus and the Time of Sale
Information and to enter into and perform its obligations under
this Agreement; and the Operating Partnership is duly qualified as
a foreign entity to transact business and is in good standing in
each other 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 so to qualify or to
be in good standing could not be reasonably expected to result in a
Material Adverse Effect. (B) Each “significant
subsidiary” of the Company (as such term is defined in
Rule 1-02 of Regulation S-X) (each a “
Significant Subsidiary ” and, collectively, the
“ Significant Subsidiaries ”) has been duly
organized and is validly existing in good standing under the laws
of the jurisdiction of its organization, has power and authority to
own, lease and operate its properties and to conduct its business
as described in the Prospectus and the Time of Sale Information and
is duly qualified 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 so to qualify or to be in good
standing could not be reasonably expected to result in a Material
Adverse Effect; except as otherwise disclosed in the Registration
Statement, all of the issued and outstanding capital stock, limited
liability company interest or partnership
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interest, as the case may be, of each such
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; no
outstanding capital stock, limited liability company interest or
partnership interest of any Significant Subsidiary was issued in
violation of the preemptive or similar rights of any securityholder
of such Significant Subsidiary. Each subsidiary of the Company,
which is a “significant subsidiary” within the meaning
of Rule 1-02(w) of Regulation S-X, is disclosed in the
Registration Statement.
(xii) Capitalization
.
(i) The Company has an authorized
capitalization as set forth in the Prospectus and the Time of Sale
Information under the heading “Capitalization” (except
for subsequent issuances, if any, pursuant to this Agreement,
agreements or employee benefit plans referred to in the Prospectus,
the redemption of any units of the Operating Partnership or the
exercise of options pursuant to incentive stock plans referred to
in the Prospectus); all the outstanding shares of capital stock of
the Company have been duly and validly authorized and issued and
are fully paid and non-assessable and are not subject to any
pre-emptive or similar rights; except as described in or
contemplated by the Prospectus and the Time of Sale Information,
there are no outstanding rights (including, without limitation,
pre-emptive rights), warrants or options to acquire, or instruments
convertible into or exchangeable for, any shares of capital stock
or other equity interest in the Company or any of its subsidiaries,
or any contract, commitment, agreement, understanding or
arrangement of any kind relating to the issuance of any capital
stock of the Company or any such subsidiary, any such convertible
or exchangeable securities or any such rights, warrants or options;
the capital stock of the Company conforms in all material respects
to the description thereof contained in the Prospectus and the Time
of Sale Information; and all the outstanding shares of capital
stock or other equity interests of each subsidiary owned, directly
or indirectly, by the Company have been duly and validly authorized
and issued, are fully paid and non-assessable (except, in the case
of any foreign subsidiary, for directors’ qualifying shares
and except as otherwise described in the Prospectus and the Time of
Sale Information) and are owned directly or indirectly by the
Company, free and clear of any lien, charge, encumbrance, security
interest, restriction on voting or transfer or any other claim of
any third party.
(ii) The capitalization of the
Operating Partnership is as set forth in the Prospectus and the
Time of Sale Information and all of the outstanding partnership
interests in the Operating Partnership have been duly authorized
and validly issued and the capital contributions with respect
thereto have been made in full; and the partnership interests
owned, directly or indirectly, by the Company are owned in the
percentage amount set forth in the Prospectus and the Time of Sale
Information free and clear of any lien, charge, encumbrance,
security interest, restriction on voting or transfer or any other
claim of any third party (except as otherwise specifically
described in the Prospectus and Time of Sale Information). The
Company, directly or indirectly, is the sole general partner of the
Operating Partnership.
(xiii) Authorization of
Agreement . This Agreement has been duly authorized, executed
and delivered by the Company and the Operating
Partnership.
(xiv) Authorization of the
Shares . The Shares to be issued and sold by the Company
hereunder have been duly authorized and, when issued and delivered
and paid for as provided herein, will be duly and validly issued,
will be fully paid and nonassessable and will conform to the
descriptions thereof in the Prospectus and Time of Sale
Information; and the issuance of the Shares is not subject to any
preemptive or similar rights.
(xv) Description of this
Agreement . This Agreement conforms in all material respects to
the description thereof contained in the Prospectus and Time of
Sale Information.
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(xvi) Absence of Defaults and
Conflicts . Neither the Company, the Operating Partnership nor
any of their subsidiaries is in violation of its organizational
documents in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which
the it or any of them 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,
the Operating Partnership or any subsidiary is subject
(collectively, “ Agreements and Instruments ”)
except for such defaults that could not, singly or in the
aggregate, be reasonably expected to result in a Material Adverse
Effect; and the execution, delivery and performance of this
Agreement and the Shares and the transactions contemplated thereby
(including the issuance and sale of the Shares and the use of the
proceeds from the sale of the Shares as described in the Prospectus
under the caption “ Use of Proceeds ”) and
compliance by the Company and the Operating Partnership with their
obligations hereunder and the Shares do not and will not, whether
with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment
Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company, the Operating Partnership or any subsidiary
pursuant to, the Agreements and Instruments (except for such
conflicts, breaches, defaults or Repayment Events or liens, charges
or encumbrances that could not, singly or in the aggregate, be
reasonably expected to result in a Material Adverse Effect), nor
will such action result in any violation of the provisions of the
organizational documents of the Company, the Operating Partnership
or any subsidiary or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction
over the Company, the Operating Partnership or any subsidiary or
any of their assets, properties or operations, except for those
violations that could not, singly or in the aggregate, be
reasonably expected to result in a Material Adverse Effect. As used
herein, a “ Repayment Event ” means any event or
condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such
holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by
the Company, the Operating Partnership or any
subsidiary.
(xvii) Absence of Proceedings
. There is no action, suit, proceeding, inquiry or investigation
before or brought 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, the
Operating Partnership or any subsidiary, which is required to be
disclosed in the Registration Statement and the Time of Sale
Information (other than as disclosed therein), or which would
result, singly or in the aggregate, in a Material Adverse Effect,
or which would materially and adversely affect the consummation of
the transactions contemplated in this Agreement or the performance
by the Company and the Operating Partnership of their obligations
hereunder.
(xviii) Absence of
Manipulation . Neither the Company nor any affiliate of the
Company has taken, nor will the Company or any affiliate take,
directly or indirectly, any action which is designed to or which
has constituted stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Shares.
(xix) Absence of Further
Requirements . No filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of,
any court or governmental authority or agency is necessary or
required for the performance by the Company or the Operating
Partnership of its obligations hereunder, in connection with the
offering, issuance or sale of the Shares hereunder or the
consummation of the transactions contemplated by this Agreement,
except such as have been already obtained or as may be required
under the 1933 Act or state securities laws.
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(xx) Possession of Licenses and
Permits . The Company, the Operating Partnership and their
subsidiaries possess such permits, licenses, approvals, consents
and other authorizations (collectively, “ Governmental
Licenses ”) issued by the appropriate federal, state,
local or foreign regulatory agencies or bodies necessary to conduct
the business now operated by them, except where the failure so to
possess could not, singly or in the aggregate, be reasonably
expected to result in a Material Adverse Effect; the Company, the
Operating Partnership and their subsidiaries are in compliance with
the terms and conditions of all such Governmental Licenses, except
where the failure so to comply could not, singly or in the
aggregate, be reasonably expected to result in a Material Adverse
Effect; all of the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full
force and effect could not, singly or in the aggregate, be
reasonably expected to result in a Material Adverse Effect; and
neither the Company, the Operating Partnership nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, could be reasonably expected to result
in a Material Adverse Effect.
(xxi) Real Estate .
(A) Except as otherwise set forth in the Registration
Statement, the Time of Sale Information and the Prospectus, the
Company, the Operating Partnership and their subsidiaries directly
or indirectly hold good and marketable title to the real property
and improvements described as being owned by the Company, the
Operating Partnership and their subsidiaries in the Prospectus (the
“ Properties ”) (which title is, as applicable,
in the form of fee simple title to land, air rights or condominium
units, or leasehold title to land, air rights or condominium units)
with such exceptions as would not, individually or in the
aggregate, have a Material Adverse Effect; subject, however, to
mortgages on such Properties, to leases of certain equipment and
other personal property, to utility easements serving such
Properties, to liens of ad valorem taxes not due and payable as of
the Closing Date and the Additional Closing Date, as the case may
be, to zoning and similar governmental land use matters affecting
such Properties that are consistent with the current uses of such
Properties, to matters of title not adversely affecting
marketability of title to such Properties, other statutory liens
not due and payable as of the Closing Date and the Additional
Closing Date, as the case may be, title matters that may be
material in character, amount or extent but which do not materially
detract from the value, or interfere with the use of, the
Properties or otherwise materially impair the business operations
being conducted or proposed to be conducted thereon, ownership of
cable television and other telecommunication lines and facilities
serving one or more of such Properties by the cable television and
other telecommunication providers or their affiliates, service
marks and trade names used in connection with such Properties, and
ownership by others of certain items of equipment and other items
of personal property that are not material to the conduct of
business operations at such Properties; and (B) the ground
lease under which the Operating Partnership leases the land or air
rights on which any Property is located is in full force and
effect, and the Operating Partnership is not in default in respect
of any of the terms or provisions of any such lease and the
Operating Partnership has not received notice of the assertion of
any claim by anyone adverse to the Operating Partnership’s
rights as lessee under any such lease, or affecting or questioning
the Operating Partnership’s right to the continued possession
or use of the Property under any such lease or of a default under
any such lease, other than claims which could not, individually or
in the aggregate, be reasonably expected to have a Material Adverse
Effect; and (C) each of the Properties complies with all
applicable codes, laws and regulations (including, without
limitation, building and zoning codes, laws and regulations and
laws relating to access to the Properties), except to the extent
disclosed in the Prospectus and except for such failures to comply
that would not be reasonably expected to, individually or in the
aggregate, have a Material Adverse Effect.
(xxii) Insurance . Each of
the Company, the Operating Partnership and their subsidiaries is
insured by insurers of recognized financial responsibility against
such losses and risks and in such amounts as are adequate and
customary in the businesses in which they are engaged, except where
the failure to be so insured could not be reasonably expected to
have a Material Adverse Effect.
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(xxiii) No Plan Assets . The
assets of the Company and the Operating Partnership do not
constitute “plan assets” under the Employee Retirement
Income Security Act of 1974, as amended.
(xxiv) Taxation as REIT . The
Company was organized and has operated in conformity with the
requirements for qualification and taxation as a REIT for each of
the taxable years beginning with the year ended December 31,
1993, and its current organization and method of operation will
enable it to continue to meet the requirements for qualification
and taxation as a REIT.
(xxv) Partnership Taxation .
The Operating Partnership and each subsidiary that is a partnership
or a limited liability company under state law (each a “
Subsidiary Partnership ”) are properly classified as
partnerships or disregarded entities, and not as corporations or as
associations taxable as corporations, for Federal income tax
purposes throughout the period from July 22, 1993 through the
date hereof, or, in the case of any Subsidiary Partnerships that
have terminated, through the date of termination of such Subsidiary
Partnerships.
(xxvi) Tax Returns . The
Company, the Operating Partnership and each of their subsidiaries
have filed or caused to be filed all federal, state, local and
foreign tax returns, reports, information returns and statements
which have been required to be filed by them (except for returns,
reports, information returns and statements the failure to file
which could not, singly or in the aggregate, be reasonably expected
to have a Material Adverse Effect) and have paid all taxes required
to be paid and any other assessment, fine or penalty levied against
them, to the extent that any of the foregoing is due and payable,
except, in all cases, for any such tax, assessment, fine or penalty
that is being contested in good faith and in respect of which
adequate reserves are being maintained and except to the extent any
such failure to pay could not, singly or in the aggregate, be
reasonably expected to have a Material Adverse Effect.
(xxvii) Investment Company
Act . The Company and the Operating Partnership are not and,
after giving effect to the offering and sale of the Shares and the
application of the proceeds thereof as described in the Prospectus
and the Time of Sale Information, will not be required to register
as an “investment company” or an entity
“controlled” by an “investment company”
within the meaning of the Investment Company Act of 1940, as
amended, and the rules and regulations of the Commission thereunder
(the “ 1940 Act ”).
(xxviii) Environmental Laws .
Except as described in the Time of Sale Information and except as
could not, singly or in the aggregate, be reasonably expected to
result in a Material Adverse Effect, (A) neither the Company,
the Operating Partnership nor any of their subsidiaries is in
violation of any legally binding applicable federal, state, local
or foreign statute, law, rule, regulation, ordinance, code, or rule
of common law or any judicial or administrative interpretation
thereof, including any judicial or administrative order, consent,
decree or judgment, relating to pollution or protection of human
health from Hazardous Materials or protection of the environment
(including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products, or asbestos-containing materials
(collectively, “ Hazardous Materials ”) or to
the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials
(collectively, “ Environmental Laws ”),
(B) the Company, the Operating Partnership and their
subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in
compliance with their requirements, (C) there are no pending
or, to the knowledge of the Company, threatened administrative,
regulatory or judicial actions, suits, demands, demand letters,
claims, liens, notices of noncompliance or violation, investigation
or proceedings relating to any Environmental Law against the
Company, the Operating Partnership or any of their subsidiaries and
(D) to the knowledge of
8
the Company, there are no events or
circumstances that would reasonably be expected to form the basis
of an order for clean-up or remediation of Hazardous Materials, or
an action, suit or proceeding by any private party or governmental
body or agency, against the Company, the Operating Partnership or
any of their subsidiaries relating to Hazardous Materials or any
applicable Environmental Laws.
(xxix) Status under the 1933
Act . The Company is not an ineligible issuer and is a
well-known seasoned issuer as to the Shares offered hereby, in each
case as defined under the 1933 Act, in each case at the times
specified in the 1933 Act in connection with the offering of the
Shares.
(xxx) No Unlawful Payments .
Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or
other person associated with or acting on behalf of the Company or
any of its subsidiaries has (i) used any corporate funds for
any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; (ii) made any direct
or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; (iii) violated or
is in violation of any provision of the Foreign Corrupt Practices
Act of 1977; or (iv) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
(xxxi) Compliance with Money
Laundering Laws . The operations of the Company, Operating
Partnership and their subsidiaries are and have been conducted at
all times in compliance with applicable financial recordkeeping and
reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the money laundering statutes of
all jurisdictions in which the Company conducts business, the rules
and regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any
governmental agency within such jurisdictions (collectively, the
“ Money Laundering Laws ”) and no action, suit
or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company, the
Operating Partnership or any of their subsidiaries with respect to
the Money Laundering Laws is pending or, to the knowledge of the
Company, threatened.
(xxxii) Compliance with OFAC
. None of the Company, the Operating Partnership any of their
subsidiaries or, to the knowledge of the Company, any director,
officer, agent, employee or affiliate of the Company, the Operating
Partnership or any of its subsidiaries is currently subject to any
U.S. sanctions administered by the Office of Foreign Assets Control
of the U.S. Department of the Treasury (“ OFAC
”); and neither the Company nor the Operating Partnership
will, directly or indirectly, use the proceeds of the offering of
the Shares hereunder, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or
other person or entity, for the purpose of financing the activities
of any person currently subject to any U.S. sanctions administered
by OFAC.
(xxxiii) No Registration
Rights . No person has the right to require the Company or any
of its subsidiaries to register any securities for sale under the
1933 Act by reason of the filing of the Registration Statement with
the Commission or the issuance and sale of the Shares.
(xxxiv) Sarbanes-Oxley Act .
There is and has been no failure on the part of the Company or, to
the knowledge of the Company, any of the Company’s directors
or officers, in their capacities as such, to comply in all material
respects with any provision of the Sarbanes-Oxley Act of 2002 and
the rules and regulations promulgated in connection therewith (the
“ Sarbanes-Oxley Act ”), including
Section 402 related to loans and Sections 302 and 906 related
to certifications.
9
SECTION 2. Sale and Delivery to
Underwriters; Closing .
(a) The Company agrees to issue and
sell the Underwritten Shares to the several Underwriters as
provided in this Agreement, and each Underwriter, on the basis of
the representations, warranties and agreements set forth herein and
subject to the conditions set forth herein, agrees, severally and
not jointly, to purchase from the Company the respective number of
Underwritten Shares set forth opposite such Underwriter’s
name in Schedule 1 hereto at a price per share (the “
Purchase Price ”) of $16.97.
In addition, the Company agrees to
issue and sell the Option Shares to the several Underwriters as
provided in this Agreement, and the Underwriters, on the basis of
the representations, warranties and agreements set forth herein and
subject to the conditions set forth herein, shall have the option
to purchase, severally and not jointly, from the Company the Option
Shares at the Purchase Price less an amount per share equal to any
dividends or distributions declared by the Company and payable on
the Underwritten Shares but not payable on the Option
Shares.
If a
