Exhibit 1.1
Regency Centers
Corporation
8,700,000 Shares of Common
Stock
Underwriting Agreement
April 21, 2009
J.P. Morgan Securities
Inc.
Wachovia Capital Markets, 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:
Regency Centers Corporation, a
Florida corporation (the “Company”), which is the
general partner of Regency Centers, L.P., a Delaware limited
partnership (the “Partnership”), proposes to issue and
sell to the several Underwriters listed in Schedule 1 hereto (the
“Underwriters”), for whom you are acting as
representatives (the “Representatives”), an aggregate
of 8,700,000 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 1,300,000 shares of
Common Stock of the Company (the “Option Shares”). The
Underwritten Shares and the Option Shares are herein referred to as
the “Shares”. The shares of Common Stock of the Company
to be outstanding after giving effect to the sale of the Shares are
referred to herein as the “Stock”. References
throughout this Agreement to “subsidiaries” shall
include the Partnership.
The Company hereby confirms its
agreement with the several Underwriters concerning the purchase and
sale of the Shares, as follows:
1. Registration Statement .
The Company has prepared and filed with the Securities and Exchange
Commission (the “Commission”) under the Securities Act
of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the “Securities
Act”), a registration statement (File No. 333-158635),
including a prospectus, relating to the Shares. Such registration
statement, as amended at the time it became effective, including
the information, if any, deemed pursuant to Rule 430A, 430B or 430C
under the Securities Act to be part of the registration statement
at the time of its effectiveness (“Rule 430
Information”), is referred to herein as the
“Registration Statement”; and as used herein, the term
“Preliminary Prospectus” means each prospectus included
in such registration statement (and any amendments thereto) before
effectiveness, any prospectus filed with the Commission pursuant to
Rule 424(a) under the Securities Act and the prospectus included in
the Registration Statement at the time of its effectiveness that
omits Rule 430 Information, and the term “Prospectus”
means the prospectus in the form first used (or made available upon
request of purchasers pursuant to Rule 173 under the Securities
Act) in connection with confirmation of sales of the Shares. If the
Company has filed an abbreviated registration statement pursuant to
Rule 462(b) under the Securities Act (the “Rule 462
Registration Statement”), then any reference herein to the
term “Registration Statement” shall be deemed to
include such Rule 462 Registration Statement. 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 Securities 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 “Exchange 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 Applicable Time
(as defined below), the Company had prepared the following
information (the “Pricing Disclosure Package”): a
Preliminary Prospectus dated April 20, 2009 and each
“free-writing prospectus” (as defined pursuant to Rule
405 under the Securities Act) listed on Annex B hereto.
“Applicable Time” means
8:15 A.M., New York City time, on April 21, 2009.
2. Purchase of the Shares by the
Underwriters .
(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 $31.1187.
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 any Option Shares are to be
purchased, the number of Option Shares to be purchased by each
Underwriter shall be the number of Option Shares which bears the
same ratio to the aggregate number of Option Shares being purchased
as the number of Underwritten Shares set forth opposite the name of
such Underwriter in Schedule 1 hereto (or such number increased as
set forth in Section 10 hereof) bears to the aggregate number
of Underwritten Shares being purchased from the Company by the
several Underwriters, subject, however, to such adjustments to
eliminate any fractional Shares as the Representatives in their
sole discretion shall make.
The Underwriters may exercise the
option to purchase Option Shares at any time in whole, or from time
to time in part, on or before the thirtieth day following the date
of the Prospectus, by written notice from the Representatives to
the Company. Such notice shall set forth the aggregate number of
Option Shares as to which the option is being exercised and the
date and time when the Option Shares are to be delivered and paid
for, which may be the same date and time as the Closing Date (as
hereinafter defined) but shall not be earlier than the Closing Date
or later than the tenth full business day (as hereinafter defined)
after the date of such notice (unless such time and date are
postponed in accordance with the provisions of Section 10
hereof). Any such notice shall be given at least two business days
prior to the date and time of delivery specified
therein.
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(b) The Company understands that the
Underwriters intend to make a public offering of the Shares as soon
after the effectiveness of this Agreement as in the judgment of the
Representatives is advisable, and initially to offer the Shares on
the terms set forth in the Prospectus. The Company acknowledges and
agrees that the Underwriters may offer and sell Shares to or
through any affiliate of an Underwriter.
(c) Payment for the Shares shall be
made by wire transfer in immediately available funds to the account
specified by the Company to the Representatives in the case of the
Underwritten Shares, at the offices of Sullivan & Cromwell
LLP, 125 Broad Street, New York, New York at 10:00 A.M., New York
City time, on April 24, 2009, or at such other time or place
on the same or such other date, not later than the fifth business
day thereafter, as the Representatives and the Company may agree
upon in writing or, in the case of the Option Shares, on the date
and at the time and place specified by the Representatives in the
written notice of the Underwriters’ election to purchase such
Option Shares. The time and date of such payment for the
Underwritten Shares is referred to herein as the “Closing
Date”, and the time and date for such payment for the Option
Shares, if other than the Closing Date, is herein referred to as
the “Additional Closing Date”.
Payment for the Shares to be
purchased on the Closing Date or the Additional Closing Date, as
the case may be, shall be made against delivery to the
Representatives for the respective accounts of the several
Underwriters of the Shares to be purchased on such date or the
Additional Closing Date, as the case may be, with any transfer
taxes payable in connection with the sale of such Shares duly paid
by the Company. Delivery of the Shares shall be made through the
facilities of The Depository Trust Company (“DTC”)
unless the Representatives shall otherwise instruct. The
certificates for the Shares will be made available for inspection
and packaging by the Representatives at the office of DTC or its
designated custodian not later than 1:00 P.M., New York City time,
on the business day prior to the Closing Date or the Additional
Closing Date, as the case may be.
(d) The Company acknowledges and
agrees that the Underwriters are acting solely in the capacity of
an arm’s length contractual counterparty to the Company with
respect to the offering of Shares contemplated hereby (including in
connection with determining the terms of the offering) and not as a
financial advisor or a fiduciary to, or an agent of, the Company or
any other person. Additionally, neither the Representatives nor any
other Underwriter is advising the Company or any other person as to
any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company shall consult with its own advisors
concerning such matters and shall be responsible for making its own
independent investigation and appraisal of the transactions
contemplated hereby, and the Underwriters shall have no
responsibility or liability to the Company with respect thereto.
Any review by the Underwriters of the Company, the transactions
contemplated hereby or other matters relating to such transactions
will be performed solely for the benefit of the Underwriters and
shall not be on behalf of the Company.
3. Representations and Warranties
of the Company . The Company represents and warrants to each
Underwriter that:
(a) Preliminary Prospectus.
No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus included in the Pricing Disclosure Package, at the time
of filing thereof, complied in all material respects with the
Securities Act, and no Preliminary Prospectus, at the time of
filing thereof, contained any untrue statement of a material fact
or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided that the Company
makes no representation and warranty with
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respect to any statements or
omissions made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use in
any Preliminary Prospectus, it being understood and agreed that the
only such information furnished by any Underwriter consists of the
information described as such in Section 7(b)
hereof.
(b) Pricing Disclosure
Package . The Pricing Disclosure Package as of the Applicable
Time did not, and as of the Closing Date and as of the Additional
Closing Date, as the case may be, will not, contain any 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 that the Company makes no representation and
warranty with respect to any statements or omissions made in
reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use in such Pricing
Disclosure Package, it being understood and agreed that the only
such information furnished by any Underwriter consists of the
information described as such in Section 7(b)
hereof.
(c) Information 8-K . As of
the Applicable Time, the Information 8-K (as defined below), did
not, and as of the Closing Date and as of the Additional Closing
Date, as the case may be, will not, contain any 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. The “Information
8-K” means the Company’s Current Report on
Form 8-K filed with the Commission on April 20, 2009
furnishing earnings guidance.
(d) Issuer Free Writing
Prospectus. Other than the Registration Statement, the
Preliminary Prospectus and the Prospectus, the Company (including
its agents and representatives, other than the Underwriters in
their capacity as such) has not prepared, used, authorized,
approved or referred to and will not prepare, use, authorize,
approve or refer to any “written communication” (as
defined in Rule 405 under the Securities 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 Securities Act or Rule 134 under
the Securities Act or (ii) the documents listed on Annex B
hereto, each electronic road show and any other written
communications approved in writing in advance by the
Representatives. Each such Issuer Free Writing Prospectus complied
in all material respects with the Securities Act, has been or will
be (within the time period specified in Rule 433) filed in
accordance with the Securities Act (to the extent required thereby)
and, when taken together with the Preliminary Prospectus
accompanying, or delivered prior to delivery of, such Issuer Free
Writing Prospectus, did not, and as of the Closing Date and as of
the Additional Closing Date, as the case may be, will not, contain
any 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 that the Company makes no
representation and warranty with respect to any statements or
omissions made in each such Issuer Free Writing Prospectus or
Preliminary Prospectus in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in
writing by such Underwriter through the Representatives expressly
for use in such Issuer Free Writing Prospectus or Preliminary
Prospectus, it being understood and agreed that the only such
information furnished by any Underwriter consists of the
information described as such in Section 7(b)
hereof.
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(e) Registration Statement and
Prospectus. The Registration Statement is an “automatic
shelf registration statement” as defined under Rule 405 of
the Securities 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 Securities Act has been received by the
Company. No order suspending the effectiveness of the Registration
Statement has been issued by the Commission, and no proceeding for
that purpose or pursuant to Section 8A of the Securities Act
against the Company or related to the offering of the Shares has
been initiated or threatened by the Commission; as of the
applicable effective date of the Registration Statement and any
post-effective amendment thereto, the Registration Statement and
any such post-effective amendment complied and will comply in all
material respects with the Securities Act, and did not and 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 not misleading; and as of the date
of the Prospectus and any amendment or supplement thereto and as of
the Closing Date and as of 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 necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that
the Company makes no representation and warranty with respect to
any statements or omissions made in reliance upon and in conformity
with information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representatives
expressly for use in the Registration Statement and the Prospectus
and any amendment or supplement thereto, it being understood and
agreed that the only such information furnished by any Underwriter
consists of the information described as such in Section 7(b)
hereof.
(f) Incorporated Documents.
The documents incorporated by reference in the Registration
Statement, the Prospectus, the Information 8-K and the Pricing
Disclosure Package, when they were filed with the Commission
conformed in all material respects to the requirements of the
Exchange Act, and none of such documents contained any untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the
Registration Statement, the Prospectus or the Pricing Disclosure
Package, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the
Exchange Act and will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
(g) Financial Statements. The
financial statements (including the related notes thereto) of the
Company and its consolidated subsidiaries included or incorporated
by reference in the Registration Statement, the Pricing Disclosure
Package and the Prospectus comply in all material respects with the
applicable requirements of the Securities Act and the Exchange Act,
as applicable, and present fairly the financial position of the
Company and its consolidated subsidiaries as of the dates indicated
and the results of their operations and the changes in their cash
flows for the periods specified; such financial statements have
been prepared in conformity with generally accepted accounting
principles in the United States applied on a consistent basis
throughout the periods covered thereby, and any supporting
schedules included or incorporated by reference in the Registration
Statement present fairly the information required to be stated
therein; and the other financial information included or
incorporated by reference in the Registration Statement, the
Pricing Disclosure Package and the Prospectus has been derived from
the accounting records of the Company and its consolidated
subsidiaries and presents fairly the
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information shown thereby; and any
pro forma financial information and the related notes
thereto included or incorporated by reference in the Registration
Statement, the Pricing Disclosure Package and the Prospectus have
been prepared in accordance with the applicable requirements of the
Securities Act and the Exchange Act, as applicable, and the
assumptions underlying such pro forma financial information are
reasonable and are set forth in the Registration Statement, the
Pricing Disclosure Package and the Prospectus.
(h) No Material Adverse
Change. Since the date of the most recent financial statements
of the Company included or incorporated by reference in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus, other than as described in the Registration Statement,
the Prospectus and the Pricing Disclosure Package, (i) there
has not been any change in the capital stock of the Company (other
than the issuance of shares of Common Stock upon exercise of stock
options and warrants, or vesting of restricted stock described as
outstanding in, and the grant of options and awards under existing
equity incentive plans described in, the Registration Statement,
the Pricing Disclosure Package and the Prospectus) or partnership
interests (other than issuances of partnership interests described
as outstanding in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, the exchange of Partnership
units or the payment of earn-outs pursuant to contractual
commitments) or in the partners’ capital of the Partnership
or any of its subsidiaries, any change in short-term debt, mortgage
loans payable or long-term debt of the Company or any of its
subsidiaries in excess of $20,000,000 or in the mortgage loans
payable or long-term debt of the Partnership or any of its
subsidiaries or any material adverse change in excess of
$20,000,000 (other than the repayment of maturing indebtedness and
other obligations through existing lines of credit and the
repayment of certain hedging obligations), or any dividend or
distribution of any kind declared, set aside for payment, paid or
made by the Company on any class of capital stock (other than the
dividend paid on the Company’s common stock on March 4,
2009 and the dividends paid on March 31, 2009 on the
Company’s Series C, D and E preferred stock), or any material
adverse change, or any development involving a prospective material
adverse change, in or affecting the business, properties,
management, financial position, stockholders’ equity, results
of operations or prospects of the Company and its subsidiaries
taken as a whole; (ii) neither the Company nor any of its
subsidiaries has entered into any transaction or agreement (whether
or not in the ordinary course of business) that is material to the
Company and its subsidiaries taken as a whole or incurred any
liability or obligation, direct or contingent, that is material to
the Company and its subsidiaries taken as a whole; and
(iii) neither the Company nor any of its subsidiaries has
sustained any loss or interference with its business that is
material to the Company and its subsidiaries taken as a whole and
that is either from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor disturbance
or dispute or any action, order or decree of any court or
arbitrator or governmental or regulatory authority, except in each
case as otherwise disclosed in the Registration Statement, the
Pricing Disclosure Package and the Prospectus.
(i) Organization and Good
Standing. The Company and each of its subsidiaries have been
duly organized and are validly existing and in good standing under
the laws of their respective jurisdictions of organization, are
duly qualified to do business and are in good standing in each
jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses requires
such qualification, and have all power and authority necessary to
own or hold their respective properties and to conduct the
businesses in which they are engaged, except where the failure to
be so qualified or in good standing or have such power or authority
would not, individually or in the aggregate, have a material
adverse effect on the business, properties, management, financial
position, stockholders’ equity, results of
operations
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or prospects of the Company and its
subsidiaries taken as a whole or on the performance by the Company
of its obligations under this Agreement (a “Material Adverse
Effect”). The Company does not own or control, directly or
indirectly, any corporation, association or other entity other than
the subsidiaries listed in Exhibit 21 to its annual report on Form
10-K.
(j) Capitalization. The
Company has an authorized capitalization as set forth in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus under the heading “Capitalization”; 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 expressly contemplated by the
Pricing Disclosure Package and the Prospectus, 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 Registration Statement,
the Pricing Disclosure Package and the Prospectus; 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 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; and all of the issued partnership interests of the
Partnership have been duly and validly authorized and issued and
are fully paid and non assessable.
(k) Stock Options. With
respect to the stock options (the “Stock Options”)
granted pursuant to the stock-based compensation plans of the
Company and its subsidiaries (the “Company Stock
Plans”), (i) each Stock Option intended to qualify as an
“incentive stock option” under Section 422 of the
Code so qualifies, (ii) each grant of a Stock Option was duly
authorized no later than the date on which the grant of such Stock
Option was by its terms to be effective (the “Grant
Date”) by all necessary corporate action, including, as
applicable, approval by the board of directors of the Company (or a
duly constituted and authorized committee thereof) and any required
stockholder approval by the necessary number of votes or written
consents, and the award agreement governing such grant (if any) was
duly executed and delivered by each party thereto, (iii) each
such grant was made in accordance with the terms of the Company
Stock Plans, the Exchange Act and all other applicable laws and
regulatory rules or requirements, including the rules of the New
York Stock Exchange and any other exchange on which Company
securities are traded, and (iv) each such grant was properly
accounted for in accordance with GAAP in the financial statements
(including the related notes) of the Company and disclosed in the
Company’s filings with the Commission in accordance with the
Exchange Act and all other applicable laws. The Company has not
knowingly granted, and there is no and has been no policy or
practice of the Company of granting, Stock Options prior to, or
otherwise coordinating the grant of Stock Options with, the release
or other public announcement of material information regarding the
Company or its subsidiaries or their results of operations or
prospects.
(l) Due Authorization. The
Company has full right, power and authority to execute and deliver
this Agreement and to perform its obligations hereunder; and all
action required to be taken for the due and proper authorization,
execution and delivery by it of this Agreement and the consummation
by it of the transactions contemplated hereby has been duly and
validly taken.
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(m) Underwriting Agreement.
This Agreement has been duly authorized, executed and delivered by
the Company.
(n) 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
Registration Statement, the Pricing Disclosure Package and the
Prospectus; and the issuance of the Shares is not subject to any
preemptive or similar rights.
(o) No Violation or Default.
Neither the Company nor any of its subsidiaries is (i) in
violation of its charter, by-laws, certificate of limited
partnership, partnership agreement or similar organizational
documents; (ii) in default, and no event has occurred that,
with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term, covenant
or condition contained in any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is
subject; or (iii) in violation of any law or statute or any
judgment, order, rule or regulation of any court or arbitrator or
governmental or regulatory authority, except, in the case of
clauses (ii) and (iii) above, for any such default or
violation that would not, individually or in the aggregate, have a
Material Adverse Effect.
(p) No Conflicts. The
execution, delivery and performance by the Company of this
Agreement, the issuance and sale of the Shares and the consummation
of the transactions contemplated by this Agreement will not
(i) conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a 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 indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is
subject, (ii) result in any violation of the provisions of the
charter or by-laws, certificate of limited partnership, partnership
agreement or similar organizational documents of the Company or any
of its subsidiaries or (iii) result in the violation of any
law or statute or any judgment, order, rule or regulation of any
court or arbitrator or governmental or regulatory authority,
except, in the case of clauses (i) and (iii) above, for
any such conflict, breach, violation or default that would not,
individually or in the aggregate, have a Material Adverse
Effect.
(q) No Consents Required. No
consent, approval, authorization, order, license, registration or
qualification of or with any court or arbitrator or governmental or
regulatory authority is required for the execution, delivery and
performance by the Company of this Agreement, the issuance and sale
of the Shares and the consummation of the transactions contemplated
by this Agreement, except for the registration of the Shares under
the Securities Act and such consents, approvals, authorizations,
orders and registrations or qualifications as may be required by
the Financial Industry Regulatory Authority, Inc.
(“FINRA”) and under applicable state securities laws in
connection with the purchase and distribution of the Shares by the
Underwriters.
(r) Legal Proceedings. Except
as described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, there are no legal, governmental or
regulatory investigations, actions, suits or proceedings pending to
which the Company or any of its
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subsidiaries is or may be a party or
to which any property of the Company or any of its subsidiaries is
or may be the subject that, individually or in the aggregate, if
determined adversely to the Company or any of its subsidiaries,
could reasonably be expected to have a Material Adverse Effect; no
such investigations, actions, suits or proceedings are threatened
or, to the knowledge of the Company, contemplated by any
governmental or regulatory authority or threatened by others; and
(i) there are no current or pending legal, governmental or
regulatory actions, suits or proceedings that are required under
the Securities Act to be described in the Registration Statement,
the Pricing Disclosure Package or the Prospectus that are not so
described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus and (ii) there are no statutes,
regulations or contracts or other documents that are required under
the Securities Act to be filed as exhibits to the Registration
Statement or described in the Registration Statement, the Pricing
Disclosure Package or the Prospectus that are not so filed as
exhibits to the Registration Statement or described in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus.
(s) Independent Accountants .
KPMG LLP, who have certified certain financial statements of the
Company and its subsidiaries is an independent registered public
accounting firm 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) and as required by the Securities Act.
(t) Title to Real and Personal
Property . The Company and its subsidiaries have good and
marketable title in fee simple (in the case of real property) to,
or have valid and marketable rights to lease or otherwise use, all
items of real and personal property and assets that are material to
the respective businesses of the Company and its subsidiaries, in
each case free and clear of all liens, encumbrances, claims and
defects and imperfections of title except those that (i) do
not materially interfere with the use made and proposed to be made
of such property by the Company and its subsidiaries or
(ii) could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect; and any real property
and buildings held under lease by the Company and its subsidiaries
are held by them under valid, subsisting and enforceable leases
with such exceptions as are not material and do not interfere with
the use made and proposed to be made of such property and buildings
by the Company and its subsidiaries.
(u) Title to Intellectual
Property . The Company and its subsidiaries own or possess
adequate rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations,
service mark registrations, copyrights, licenses and know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures)
necessary for the conduct of their respective businesses as
currently conducted and as proposed to be conducted, and the
conduct of their respective businesses will not conflict in any
material respect with any such rights of others. The Company and
its subsidiaries have not received any notice of any claim of
infringement, misappropriation or conflict with any such rights of
others in connection with its patents, patent rights, licenses,
inventions, trademarks, service marks, trade names, copyrights and
know-how, which could reasonably be expected to result in a
Material Adverse Effect.
(v) No Undisclosed
Relationships . No relationship, direct or indirect, exists
between or among the Company or any of its subsidiaries, on the one
hand, and the directors, officers, stockholders, customers or
suppliers of the Company or any of its subsidiaries, on the other,
that is required by the Securities Act to be described in the
Registration Statement and the Prospectus and that is not so
described in such documents and in the Pricing Disclosure
Package.
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(w) Real Estate Investment Trust
Status . The Company has qualified to be taxed as a real estate
investment trust pursuant to Sections 856 through 860 of the
Code, for each of the fiscal years from its inception through the
most recently completed fiscal year and the Company’s present
and contemplated organization, ownership, method of operation,
assets and income, taking into account the consummation of the
transactions contemplated herein, are such that the Company is in a
position under present law to so qualify for the current fiscal
year and in the future.
(x) Investment Company Act .
Neither the Company nor the Partnership is, and after giving effect
to the offering and sale of the Shares and the application of the
proceeds thereof as described in the Registration Statement, the
Pricing Disclosure Package and the Prospectus, will 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
(collectively, the “Investment Company
Act”).
(y) Taxes. The Company and
its subsidiaries have paid all federal, state, local and foreign
taxes and filed all tax returns required to be paid or filed
through the date hereof; and except as otherwise disclosed in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus, there is no tax deficiency that has been, or could
reasonably be expected to be, asserted against the Company or any
of its subsidiaries or any of their respective properties or
assets.
(z) Licenses and Permits. The
Company and its subsidiaries possess all licenses, certificates,
permits and other authorizations issued by, and have made all
declarations and filings with, the appropriate federal, state,
local or foreign governmental or regulatory authorities that are
necessary for the ownership or lease of their respective properties
or the conduct of their respective businesses as described in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus, except where the failure to possess or make the same
would not, individually or in the aggregate, have a Material
Adverse Effect; and except as described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus,
neither the Company nor any of its subsidiaries has received notice
of any revocation or modification of any such license, certificate,
permit or authorization or has any reason to believe that any such
license, certificate, permit or authorization will not be renewed
in the ordinary course.
(aa) No Labor Disputes. No
labor disturbance by or dispute with employees of the Company or
any of its subsidiaries exists or, to the knowledge of the Company
or the Partnership, is contemplated or threatened, and neither the
Company nor the Partnership is aware of any existing or imminent
labor disturbance by, or dispute with, the employees of any of its
or its subsidiaries’ principal suppliers, contractors or
customers, except as would not have a Material Adverse
Effect.
(bb) Compliance with and
Liability under Environmental Laws. (i) The Company and
its subsidiaries (a) are, and at all prior times were, in
compliance with any and all applicable federal, state, local and
foreign laws, rules, regulations, requirements, decisions,
judgments, decrees, orders and the common law relating to pollution
or the protection of the environment, natural resources or human
health or safety, including those relating to the generation,
storage, treatment, use, handling, transportation, Release or
threat of Release of Hazardous Materials (collectively,
“Environmental Laws”), (b) have received and are
in compliance with all permits, licenses, certificates or other
authorizations or approvals required of them under
applicable
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Environmental Laws to conduct their
respective businesses, (c) have not received notice of any
actual or potential liability under or relating to, or actual or
potential violation of, any Environmental Laws, including for the
investigation or remediation of any Release or threat of Release of
Hazardous Materials, and have no knowledge of any event or
condition that would reasonably be expected to result in any such
notice, (d) are not conducting or paying for, in whole or in
part, any investigation, remediation or other corrective action
pursuant to any Environmental Law at any location, and (e) are
not a party to any order, decree or agreement that imposes any
obligation or liability under any Environmental Law, and
(ii) there are no costs or liabilities associated with
Environmental Laws of or relating to the Company or its
subsidiaries, except in the case of each of (i) and
(ii) above, for any such matter, as would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse
Effect; and (iii) except as described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus,
(a) there are no proceedings that are pending, or that are
known to be contemplated, against the Company or any of its
subsidiaries under any Environmental Laws in which a governmental
entity is also a party, other than such proceedings regarding which
it is reasonably believed no monetary sanctions of $100,000 or more
will be imposed, (b) the Company and its subsidiaries are not
aware of any facts or issues regarding compliance with
Environmental Laws, or liabilities or other obligations under
Environmental Laws, including the Release or threat of Release of
Hazardous Materials, that could reasonably be expected to have a
material effect on the capital expenditures, earnings or
competitive position of the Company and its subsidiaries, and
(c) none of the Company and its subsidiaries anticipates
material capital expenditures relating to any Environmental
Laws.
(cc) Hazardous Materials .
There has been no storage, generation, transportation, use,
handling, treatment, Release or threat of Release of Hazardous
Materials by, relating to or caused by the Company or any of its
subsidiaries (or, to the knowledge of the Company and its
subsidiaries, any other entity (including any predecessor) for
whose acts or omissions the Company or any of its subsidiaries is
or could reasonably be expected to be liable) at, on, under or from
any property or facility now or previously owned, operated or
leased by the Company or any of its subsidiaries, or at, on, under
or from any other property or facility, in violation of any
Environmental Laws or in a manner or amount or to a location that
could reasonably be expected to result in any liability under any
Environmental Law, except for any violation or liability which
would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect. “Hazardous
Materials” means any material, chemical, substance ,waste,
pollutant, contaminant, compound, mixture, or constituent thereof,
in any form or amount, including petroleum (including crude oil or
any fraction thereof) and petroleum products, natural gas liquids,
asbestos and asbestos containing materials, naturally occurring
radioactive materials, brine, and drilling mud, regulated or which
can give rise to liability under any Environmental Law.
“Release” means any spilling, leaking, seepage,
pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, disposing, depositing, dispersing, or
migrating in, into or through the environment, or in, into from or
through any building or structure.
(dd) Compliance with ERISA.
(i) Each employee benefit plan, within the meaning of
Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended (“ERISA”), for which the Company or
any member of its “Controlled Group” (defined as any
organization which is a member of a controlled group of
corporations within the meaning of Section 414 of the Internal
Revenue Code of 1986, as amended (the “Code”)) would
have any liability (each, a “Plan”) has been maintained
in compliance with its terms and the requirements of any applicable
statutes, orders, rules and regulations, including but not limited
to ERISA and the Code, except for noncompliance that could not
reasonably be expected to result in material liability to
the
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Company or its subsidiaries;
(ii) no prohibited transaction, within th
