EXHIBIT 1.1
Execution Version
NATIONAL RETAIL PROPERTIES,
INC.
3,200,000 Depositary
Shares
Each Representing 1/100th of a share
of 7.375% Series C Cumulative Redeemable
Preferred Stock (Par Value $0.01 Per
Share)
(Liquidation Preference Equivalent to $25.00 Per
Depositary Share)
UNDERWRITING AGREEMENT
October 5, 2006
STIFEL, NICOLAUS & COMPANY,
INCORPORATED
100 Light Street, 31
st
Floor
Baltimore, MD 21202
A.G. EDWARDS & SONS,
INC.
One North Jefferson
Avenue
St. Louis, Missouri 63103
RAYMOND JAMES & ASSOCIATES,
INC.
880 Carillon Parkway
St. Petersburg, FL 33716
As the Representatives of
the
several Underwriters named in
Schedule I hereto
Ladies and Gentlemen:
National Retail Properties, Inc., a
Maryland corporation (the “ Company ”), proposes
to issue and sell to the several Underwriters (the “
Underwriters ”) named in Schedule I hereto
for whom you are acting as Representatives (the “
Representatives ”) 3,200,000 shares (the “
Firm Shares ”) of its depositary shares (the “
Depositary Shares ”), each representing 1/100th of a
share of the Company’s 7.375% Series C Cumulative Redeemable
Preferred Stock, par value $0.01 per share (the “ Series C
Preferred Stock ”). The Company also proposes to grant to
the Underwriters an option to purchase up to an additional 480,000
Depositary Shares solely to cover over-allotments (the “
Option Shares ”; the Option Shares, together with the
Firm Shares, hereinafter called the “ Shares ”).
The respective amounts of the Shares to be so purchased by the
several Underwriters are set forth opposite their names in
Schedule I hereto.
The shares of Series C Preferred
Stock represented by the Shares (the “ Preferred
Shares ”) will, when issued, be deposited by the Company
against delivery of depositary receipts (the “ Depositary
Receipts ”) to be issued by American Stock
Transfer & Trust Company, as
Depositary (the “ Depositary
”), under a Deposit Agreement (the “ Deposit
Agreement ”) among the Company, the Depositary, and the
holders from time to time of the Depositary Receipts issued
thereunder. Each Depositary Receipt will represent one or more
Depositary Shares.
As the Representatives, you have
advised the Company (a) that you are authorized to enter into
this underwriting agreement (the “ Agreement ”)
on behalf of the several Underwriters, and (b) that the
several Underwriters are willing, acting severally and not jointly,
to purchase the number of Shares set forth opposite their names in
Schedule I .
The Company wishes to confirm as
follows its agreement with you in connection with the purchase of
the Shares by the several Underwriters.
1. Registration Statement and
Prospectus . The Company has 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 “ Act ”), an
automatic shelf registration statement, as defined in Rule 405, on
Form S-3 (file number 333-132095) under the Act (“
Registration Statement 333-132095 ”), which
registration statement included a combined prospectus dated
February 28, 2006 (the “ Basic Prospectus
”), relating to an indeterminate aggregate offering price or
number of, among other securities, the Shares and the Preferred
Shares, and has filed with, or transmitted for filing to, or shall
promptly hereafter file with or transmit for filing to, the
Commission a supplement to the prospectus included in such
registration statement (the “ Prospectus Supplement
”) specifically relating to the Shares and the plan of
distribution thereof pursuant to Rule 424. Registration Statement
333-132095, including any amendments thereto filed prior to the
Execution Time, became effective upon filing. Except where the
context otherwise requires, Registration Statement 333-132095, on
each date and time that such registration statement and any
post-effective amendment or amendments thereto became or becomes
effective (each, an “ Effective Date ”),
including all documents filed as part thereof and including any
information contained in a Prospectus (as defined below)
subsequently filed with the Commission pursuant to Rule 424(b) and
deemed part of such registration statement, collectively, are
herein called the “ Registration Statement ,”
and the Basic Prospectus, as supplemented by the final Prospectus
Supplement, in the form first used by the Company in connection
with confirmation of sales of the Shares, is herein called the
“ Prospectus ”; and the term “
Preliminary Prospectus ” means any preliminary form of
the Prospectus Supplement. The Basic Prospectus together with the
Preliminary Prospectus, as amended or supplemented, immediately
prior to the date and time that this Agreement is executed and
delivered by the parties hereto (the “ Execution Time
”) is hereafter called the “ Pricing Prospectus
,” and any “issuer free writing prospectus” (as
defined in Rule 433) relating to the Shares is hereafter called an
“ Issuer Free Writing Prospectus .” The Pricing
Prospectus, as supplemented by the Issuer Free Writing
Prospectuses, if any, attached and listed in Schedule II
hereto or that the parties hereto shall hereafter expressly agree
in writing to treat as part of the Disclosure Package (as defined
below), if any, taken together, are hereafter collectively called
the “ Disclosure Package .” Any reference in
this Agreement to the Registration Statement, the Disclosure
Package, the Prospectus or any amendment or supplement thereto
shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 under the
Act (the “ Incorporated Documents ”), as of each
Effective Date or the Execution Time or the date of the Prospectus,
as the case may be (it being understood that the several specific
references in this Agreement to documents incorporated
by
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reference in the Registration Statement, the
Disclosure Package or the Prospectus are for clarifying purposes
only and are not meant to limit the inclusiveness of any other
definition herein). For purposes of this Agreement, all references
to the Registration Statement, the Disclosure Package or the
Prospectus or any amendment or supplement thereto shall be deemed
to include the copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval
system.
All references in this Agreement to
financial statements and schedules and other information which is
“contained,” “included,”
“stated” or “described” in the Registration
Statement, the Disclosure Package 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, the Disclosure Package or the Prospectus, as the case
may be; and all references in this Agreement to amendments or
supplements to the Registration Statement, the Disclosure Package
or the Prospectus shall be deemed to include the filing of any
document under the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder
(the “ Exchange Act ”), which is or is deemed to
be incorporated by reference in the Registration Statement, the
Disclosure Package or the Prospectus, as the case may
be.
2. Agreement to Sell and
Purchase .
(a) The Company hereby agrees,
subject to all the terms and conditions set forth herein, to issue
and sell to the Underwriters and, upon the basis of the
representations, warranties and agreements of the Company herein
contained and subject to all the terms and conditions set forth
herein, each Underwriter agrees, severally and not jointly, to
purchase from the Company, at a purchase price of $24.2125 per
Share, the number of Firm Shares set forth opposite their
respective names on Schedule I to this
Agreement.
(b) Subject to the terms and
conditions and in reliance upon the representations and warranties
herein set forth, the Company hereby grants an option to the
several Underwriters to purchase, severally and not jointly, up to
the number of Option Shares set forth in Schedule I hereto
at the same purchase price set forth in Section 2(a), plus
accumulated dividends, if any, on such Option Shares to the date of
purchase. Said option may be exercised only to cover
over-allotments in the sale of the Firm Shares by the Underwriters.
Said option may be exercised in whole or in part at any time on or
before the 30th day after the date of the Prospectus upon written
or telegraphic notice by the Representatives to the Company setting
forth the number of the Option Shares as to which the several
Underwriters are exercising the option and the settlement date
(each, an “ Option Closing Date ”). Each
purchase date must be at least one business day after the written
notice is given and may not be earlier than the Closing Date for
the Firm Shares nor later than ten (10) Business Days after
the date of such notice. The number of Option Shares to be
purchased by each Underwriter shall be the same percentage of the
total number of the Option Shares to be purchased by the several
Underwriters as such Underwriter is purchasing of the Firm
Shares.
3. Offering by Underwriters .
It is understood that the several Underwriters propose to offer the
Shares for sale to the public as soon after this Agreement has
become effective as in
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their judgment is advisable and initially to
offer the Shares upon the terms set forth in the Prospectus. Each
Underwriter, severally and not jointly, represents and agrees as
follows:
(a) unless it has or shall have
obtained, as the case may be, the prior written consent of the
Company, it has not made and will not make any offer relating to
the Shares that would constitute an Issuer Free Writing Prospectus
or that would otherwise constitute a “free writing
prospectus” (as defined in Rule 405) required to be filed by
the Company with the Commission or retained by the Company under
Rule 433, other than the free writing prospectus containing the
information contained in the final term sheet prepared and filed
pursuant to Section 5(b) hereto; provided that the
prior written consent of the parties hereto shall be deemed to have
been given in respect of the Free Writing Prospectuses included in
Schedule II hereto and any electronic road show.
4. Delivery of the Shares and
Payment Therefor . Delivery of and payment for the Shares shall
be made at 10:00 AM, New York City time, on October 12, 2006,
or at such time on such later date not more than three
(3) Business Days after the foregoing date as the
Representatives shall designate, which date and time may be
postponed by mutual written agreement of the Representatives and
the Company (such date and time of delivery and payment for the
Shares being herein called the “ Closing Date ”)
or on the applicable Option Closing Date (or at such other time on
the same or on such other date, in any event not later than the
third business day thereafter, as the Underwriters and the Company
may agree in writing). Delivery of the Shares shall be made against
payment by the Representatives of the purchase price thereof, to or
upon the order of the Company by wire transfer payable in same-day
funds to an account specified by the Company. The Shares will be
delivered to the Representatives for the respective accounts of the
several Underwriters through the book-entry facilities of The
Depository Trust Company (“ DTC ”) and will be
made available for inspection by the Underwriters by 1:00 p.m. New
York City time at least 24 hours prior to the Closing Date or any
Option Closing Date, as the case may be, at such place as the
Underwriters and the Company shall agree. The Shares shall be in
global form registered in the name of Cede & Co., as
nominee for DTC. Certificate(s) for the Preferred Shares shall be
delivered to the Depositary and registered in the name of
Cede & Co., as nominee for DTC and in such denominations
as the Representatives shall request prior to 1:00 P.M., New York
City time, on the second Business Day preceding the Closing Date or
any Option Closing Date, as the case may be. Such certificates
shall be made available to, or at the direction of, the
Representatives in New York City for inspection and packaging not
later than 9:30 A.M., New York City time, on the Business Day next
preceding the Closing Date or any Option Closing Date, as the case
may be. The certificates evidencing the Shares to be purchased
hereunder shall be delivered to, or at the direction of, the
Representatives on the Closing Date or the Option Closing Date, as
the case may be, against payment of the purchase price therefor by
wire transfer of immediately available funds to the order of the
Company.
5. Agreements of the Company
. The Company agrees with the Underwriters as follows:
(a) If, at the time this Agreement
is executed and delivered, it is necessary for a post-effective
amendment to the Registration Statement to be declared effective
before the offering of the Shares may commence, the Company will
use its best efforts to cause such post-effective amendment to
become effective as soon as possible and will advise the
Representatives
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promptly and, if requested by the
Representatives, will confirm such advice in writing, immediately
after such post-effective amendment has become
effective.
(b) If, at any time prior to the
filing of the Prospectus pursuant to Rule 424(b), any event occurs
as a result of which the Disclosure Package would (x) include
any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light
of the circumstances under which they were made or the
circumstances then prevailing not misleading or (y) conflict
with the information contained in the Registration Statement, the
Company will (i) notify promptly the Representatives so that
any use of the Disclosure Package may cease until it is amended or
supplemented; (ii) amend or supplement the Disclosure Package
to correct such statement, omission or conflicting information; and
(iii) supply any amendment or supplement to the
Representatives in such quantities as may be reasonably
requested.
(c) The Company will advise the
Representatives promptly and, if requested by the Representatives,
will confirm such advice in writing: (i) of any review,
issuance of comments, or request by the Commission or its staff on
or for an amendment of or a supplement to the Registration
Statement, any Preliminary Prospectus or the Prospectus or for
additional information regarding the Company, its affiliates or its
filings with the Commission, whether or not such filings are
incorporated by reference into the Registration Statement, any
Preliminary Prospectus or the Prospectus; (ii) of the issuance
by the Commission of any stop order suspending the effectiveness of
the Registration Statement or of the suspension of qualification of
the Shares or the Preferred Shares for offering or sale in any
jurisdiction or the initiation of any proceeding for such purpose
or any examination pursuant to Section 8(e) of the Act
relating to the Registration Statement or Section 8A of the
Act in connection with the offering of the Shares; (iii) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Shares or the Preferred
Shares for sale in any jurisdiction or the institution or
threatening of any proceeding for such purpose; and
(iv) within the period of time referred to in the first
sentence in subsection (f) below, of any change in the
Company’s condition (financial or other), business,
prospects, properties, net worth or results of operations, or of
the happening of any event, which results in any statement of a
material fact made in the Registration Statement or the Prospectus
(as then amended or supplemented) being untrue or which requires
the making of any additions to or changes in the Registration
Statement or the Prospectus (as then amended or supplemented) in
order to state a material fact required by the Act to be stated
therein or necessary in order to make the statements therein not
misleading, or of the necessity to amend or supplement the
Prospectus (as then amended or supplemented) to comply with the Act
or any other law. If at any time the Commission shall issue any
stop order suspending the effectiveness of the Registration
Statement, the Company will make every reasonable effort to obtain
the withdrawal of such order at the earliest possible
time.
(d) The Company will furnish to the
Representatives and counsel to the Representatives, without charge:
(i) ten (10) signed copies of the Registration Statement
as originally filed with the Commission and of each amendment
thereto, including financial statements and all exhibits to the
registration statement; (ii) such number of conformed copies
of the Registration Statement as originally filed and of each
amendment thereto, but without exhibits, as the Underwriters may
request; (iii) such number of copies of the Incorporated
Documents, without exhibits, as the Representatives may request;
and (iv) ten copies of the
5
exhibits to the Incorporated
Documents. The Company will pay all of the expenses of printing or
other production of all documents relating to the
offering.
(e) The Company will not file any
amendment to the Registration Statement or make any amendment or
supplement to the Prospectus or, prior to the end of the period of
time referred to in the first sentence in subsection
(f) below, file any document which upon filing becomes an
Incorporated Document, of which the Representatives shall not
previously have been advised or to which, after the Representatives
shall have received a copy of the document proposed to be filed,
the Representatives shall reasonably object; and no such further
document, when it is filed, will contain an untrue statement of a
material fact or will omit to state a material fact required to be
stated therein or necessary in order to make the statements therein
not misleading. The Company will give the Representatives notice of
its intention to make any other filing pursuant to the Exchange Act
from the Execution Time to the Closing Time and will furnish the
Representatives with copies of any such documents a reasonable
amount of time prior to such proposed filing.
(f) As soon after the execution and
delivery of this Agreement as possible and thereafter from time to
time for such period as in the opinion of counsel for the
Underwriters a prospectus is required by the Act to be delivered in
connection with sales by the Underwriters or any dealer (including
circumstances where such requirement may be satisfied pursuant to
Rule 172), the Company will file promptly all reports and any
definitive proxy or information statements required to be filed by
the Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act and the Company will
expeditiously deliver to the Underwriters and each dealer, without
charge, as many copies of the Prospectus (and of any amendment or
supplement thereto), any Preliminary Prospectus and any Issuer Free
Writing Prospectus as the Representatives may request. The Company
consents to the use of the Prospectus (and of any amendment or
supplement thereto) in accordance with the provisions of the Act
and with the securities or blue sky laws of the jurisdictions in
which the Shares are offered by the several Underwriters and by all
dealers to whom Shares may be sold, both in connection with the
offering and sale of the Shares and for such period of time
thereafter as the Prospectus is required by the Act to be delivered
in connection with sales by any Underwriters or dealers. If during
such period of time: (i) any event shall occur as a result of
which, in the judgment of the Company, or in the opinion of counsel
for the Underwriters, the Prospectus as supplemented would include
an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the
light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading; or (ii) if it is necessary to
supplement the Prospectus or amend the Registration Statement (or
to file under the Exchange Act any document which, upon filing,
becomes an Incorporated Document) in order to comply with the Act,
the Exchange Act or any other law, the Company will promptly notify
the Representatives of such event and forthwith prepare and,
subject to the provisions of paragraph (e) above, file with
the Commission an appropriate supplement or amendment thereto (or
to such document), and will expeditiously furnish to the
Underwriters and dealers a reasonable number of copies thereof. In
the event that the Company and the Representatives agree that the
Prospectus should be amended or supplemented, the Company, if
requested by the Representatives, will promptly issue a press
release announcing or disclosing the matters to be covered by the
proposed amendment or supplement.
6
(g) The Company will:
(i) cooperate with the Underwriters and with counsel for the
Underwriters in connection with the registration or qualification
of the Shares and the Preferred Shares for offering and sale by the
Underwriters and by dealers under the securities or blue sky laws
of such jurisdictions as the Underwriters may designate;
(ii) maintain such qualifications in effect so long as
required for the distribution of the Shares; (iii) pay any fee
of the National Association of Securities Dealers, Inc., in
connection with its review of the offering; and (iv) file such
consents to service of process or other documents necessary or
appropriate in order to effect such registration or qualification;
provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so
qualified or to take any action which would subject it to service
of process in suits, other than those arising out of the offering
or sale of the Shares, in any jurisdiction where it is not now so
subject.
(h) The Company agrees that, unless
it has or shall have obtained the prior written consent of the
Representatives, it has not made and will not make any offer
relating to the Shares that would constitute an Issuer Free Writing
Prospectus or that would otherwise constitute a “free writing
prospectus” (as defined in Rule 405) required to be filed by
the Company with the Commission or retained by the Company under
Rule 433, other than the free writing prospectus containing the
information contained in the final term sheet prepared and filed
pursuant to Section 5(t) hereto; provided that the
prior written consent of the parties hereto shall be deemed to have
been given in respect of the Free Writing Prospectuses included in
Schedule II hereto and any electronic road show. Any
such free writing prospectus consented to by the Representatives or
the Company is hereinafter referred to as a “ Permitted
Free Writing Prospectus .” The Company agrees that
(x) it has treated and will treat, as the case may be, each
Permitted Free Writing Prospectus as an Issuer Free Writing
Prospectus and (y) it has complied and will comply, as the
case may be, with the requirements of Rules 164 and 433 applicable
to any Permitted Free Writing Prospectus, including in respect of
timely filing with the Commission, legending and record
keeping.
(i) The Company will make generally
available to its security holders and to the Representatives a
consolidated earnings statement, which need not be audited,
covering a 12-month period commencing after the effective date of
this Agreement and ending not later than 15 months thereafter, as
soon as practicable after the end of such period, which
consolidated earnings statement shall satisfy the provisions of
Section 11(a) of the Act and Rule 158 under the
Act.
(j) During the period commencing on
the date hereof and ending on the date occurring three years
hereafter, the Company will furnish to the Representatives:
(i) as soon as available, if requested, a copy of each report
of the Company mailed to stockholders or filed with the Commission;
and (ii) from time to time such other information concerning
the Company as the Representatives may reasonably
request.
(k) If this Agreement shall
terminate or shall be terminated after execution pursuant to any
provisions hereof, or if this Agreement shall be terminated by the
Underwriters because of any inability, failure or refusal on the
part of the Company to comply with the terms or fulfill any of the
conditions of this Agreement, the Company shall reimburse the
Underwriters for all out-of-pocket expenses (including fees and
expenses of counsel for the Underwriters) incurred by the
Underwriters in connection herewith.
7
(l) The Company will apply the net
proceeds from the sale of the Shares substantially in accordance
with the description set forth in the Prospectus.
(m) If Rule 430A, 430B or 430C of
the Act is employed, the Company will timely file the Prospectus
pursuant to Rule 424(b) under the Act and will advise the
Underwriters of the time and manner of such filing.
(n) The Company has not taken, nor
will it take, directly or indirectly, any action designed to, or
that might reasonably be expected to cause or result in, under the
Exchange Act or otherwise, stabilization or manipulation of the
price of any security of the Company to facilitate the sale or
resale of the Shares.
(o) The Company will comply and will
use its best efforts to cause its tenants to comply in all material
respects with all applicable Environmental Laws (as hereinafter
defined).
(p) The Company will use its best
efforts to continue to qualify as a real estate investment trust (a
“ REIT ”) under the Internal Revenue Code of
1986, as amended (the “ Code ”), and to continue
to have each of its corporate subsidiaries (other than its taxable
REIT subsidiaries) comply with all applicable laws and regulations
necessary to maintain a status as a “qualified REIT
subsidiary” under the Code.
(q) The Company will use all
reasonable best efforts to do or perform all things required to be
done or performed by the Company prior to the Closing Date to
satisfy all conditions precedent to the delivery of the Shares
pursuant to this Agreement.
(r) The Company will not, without
the prior written consent of the Representatives, offer, sell,
contract to sell or otherwise dispose of any preferred securities
of the Company that are similar to the Series C Preferred Stock,
including but not limited to any securities that are convertible
into or exchangeable for, or that represent the right to receive,
any such similar securities for a period of sixty (60) days
after the Closing Date.
(s) The Company will comply with all
applicable securities and other applicable laws, rules and
regulations, including, without limitation, the Sarbanes-Oxley Act
of 2002 (the “ Sarbanes-Oxley Act ”), and to use
its best efforts to cause the Company’s directors and
officers, in their capacities as such, to comply with such laws,
rules and regulations, including, without limitation, the
provisions of the Sarbanes-Oxley Act.
(t) The Company will prepare a final
term sheet, containing solely a description of final terms of the
Shares and the offering thereof, in the form and substance approved
by the Representatives and attached as Exhibit A hereto and
will file such final term sheet with the Commission as soon as
practical after the Execution Time. The Company will file any other
Issuer Free Writing Prospectus to the extent required by Rule 433
under the Securities Act and will pay any required registration fee
for this offering pursuant to Rule 456(b)(1) under the Securities
Act within the time period required by such rule (without regard to
the proviso therein relating to the four business days extension to
the payment deadline) and in any event prior to the Closing Date.
The Company will retain, pursuant to reasonable
procedures
8
developed in good faith, copies of
each Issuer Free Writing Prospectus that is not filed with the
Commission in accordance with Rule 433(g) under the Securities
Act.
(u) The Company will use best
efforts to complete all required filings with the New York Stock
Exchange and other necessary actions in order to cause the Shares
to be listed and admitted and authorized for trading on the New
York Stock Exchange, subject to notice of issuance.
(v) At or prior to the Closing Date,
the Company will prepare and file a registration statement on Form
8-A with the Commission covering the Shares.
(w) The Company will prepare and
file articles supplementary to the Company’s articles of
incorporation, authorizing the Series C Preferred Stock and
designating the rights, preferences and restrictions relating
thereto (the “ Articles Supplementary ”) with
the Department of Assessments and Taxation of the State of Maryland
(“ Maryland DAT ”) prior to the
Closing.
6. Representations and Warranties
of the Company . The Company hereby represents and warrants to
each of the Underwriters:
(a) The Basic Prospectus and each
Preliminary Prospectus, if any, included as part of the
registration statement as originally filed or as part of any
amendment or supplement thereto, or filed pursuant to Rule 424
under the Act, complied when so filed in all material respects with
the provisions of the Act.
(b) The Company and the transactions
contemplated by this Agreement meet all of the requirements for
using Form S-3 under the Act pursuant to the standards for such
form in effect currently and immediately prior to October 21,
1992. The Registration Statement, including any amendments thereto
filed prior to the Execution Time, became effective upon filing. No
stop order suspending the effectiveness of the Registration
Statement is in effect, and no proceedings or examination under
Section 8(d) or 8(e) of the Act are pending before or, to the
best of the Company’s knowledge, threatened by the
Commission. The Company is not the subject of a pending proceeding
under Section 8A of the Act in connection with the offering of
the Shares. The Registration Statement meets the requirements set
forth in Rule 415(a)(1)(x) under the Act and complies in all other
material respects with such Rule. The Registration Statement, in
the form in which it became effective, and also in such form as it
may be when any post-effective amendment thereto shall become
effective, and the Preliminary Prospectus and the Prospectus and
any supplement or amendment thereto, each when filed with the
Commission under Rule 424(b) under the Act, complied or will comply
in all material respects with the provisions of the Act and the
Exchange Act. The Company has not received from the Commission any
notice pursuant to Rule 401(g)(2) of the Act objecting to the use
of the automatic shelf registration statement form. On each
Effective Date and at the Execution Time, the Registration
Statement did 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 made therein not misleading. On
the date of any filing pursuant to Rule 424(b) and on the
Closing Date and each Option Closing Date, the Prospectus (together
with any supplement thereto) will not, include any untrue statement
of a material fact or omit to state a material fact necessary in
order to make the
9
statements therein, in the light of
the circumstances under which they were made, not misleading. The
representation and warranty contained in this Section 6(b)
does not apply to statements in or omissions from the Registration
Statement, the Disclosure Package or the Prospectus made in
reliance upon and in conformity with information relating to the
Underwriters furnished to the Company in writing by or on behalf of
the Underwriters expressly for use therein.
(c) (i) The Disclosure Package, and
(ii) each electronic road show when taken together as a whole
with the Disclosure Package, did not at the Execution Time, and
will not on the Closing Date and each Option Closing Date, contain
any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading. The preceding sentence does not apply to statements in
or omissions from the Disclosure Package made in reliance upon and
in conformity with information relating to the Underwriters
furnished to the Company in writing by or on behalf of the
Underwriters expressly for use therein.
(d) (i) At the time of filing the
Registration Statement, (ii) at the time of the most recent
amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to
Sections 13 or 15(d) of the Exchange Act or form of prospectus),
(iii) at the time the Company or any person acting on its
behalf (within the meaning, for this clause only, of Rule 163(c))
made any offer relating to the Shares in reliance on the exemption
in Rule 163, and (iv) at the Execution Time (with such date
being used as the determination date for purposes of this clause
(iv)), the Company was or is (as the case may be) a
“well-known seasoned issuer” as defined in Rule
405.
(e) (i) At the earliest time after
the filing of the Registration Statement that the Company or
another offering participant made a bona fide offer (within
the meaning of Rule 164(h)(2)) of the Shares and (ii) as of
the Execution Time (with such date being used as the determination
date for purposes of this clause (ii)), the Company was not and is
not an Ineligible Issuer (as defined in Rule 405), without taking
account of any determination by the Commission pursuant to Rule 405
that it is not necessary that the Company be considered an
Ineligible Issuer.
(f) Each Issuer Free Writing
Prospectus and the final term sheet prepared and filed pursuant to
Section 5(t) hereof does not include any information that
conflicts with the information contained in the Registration
Statement, including any Incorporated Document by reference therein
and any prospectus supplement deemed to be a part thereof that has
not been superseded or modified. The foregoing sentence does not
apply to statements in or omissions from any Issuer Free Writing
Prospectus based upon and in conformity with written information
furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by or on behalf
of any Underwriter consists of the information described as such in
Section 12 hereof.
(g) The Incorporated Documents
heretofore filed, when they were filed (or, if any amendment with
respect to any such document was filed, when such amendment was
filed), conformed in all material respects with the requirements of
the Exchange Act and the rules and regulations of the Commission
thereunder. The Company has given the Representatives
notice
10
of any filings made pursuant to the
Exchange Act within 48 hours prior to the Execution Time. No such
document when it was filed (or, if an amendment with respect to any
such document was filed, when such amendment was filed), 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 made therein, in light of the circumstances
under which they were made, not misleading.
(h) The Shares and the Preferred
Shares have been duly and validly authorized and will conform in
all material respects to the description of the Shares contained in
the Disclosure Package and the Prospectus and, when issued and
delivered pursuant to this Agreement and, in the case of the
Shares, the Deposit Agreement, will be fully paid and
non-assessable; the Depositary Receipts will entitle the holders
thereof to the benefits provided therein and in the Deposit
Agreement. The form of certificate for the Shares will be in valid
and sufficient form in compliance with the New York Stock Exchange
requirements.
(i) Each of the Company and each of
its subsidiaries is a corporation, limited liability company,
partnership or trust, as applicable, duly organized, validly
existing and in good standing under the laws of the state of its
formation, as set forth on Schedule III hereto, with
full corporate, partnership or trust power, as applicable, and
authority to own, lease and operate its properties and to conduct
its business as described in the Registration Statement, the
Disclosure Package and the Prospectus, and each is duly registered
and qualified to conduct its business, and is in good standing, in
each jurisdiction or place where the nature of its properties or
the conduct of its business requires such registration or
qualification, except where the failure so to register or qualify
does not have a material adverse effect on the condition (financial
or other), prospects, earnings, business, properties, net worth or
results of operations of the Company and its subsidiaries taken as
a whole, whether or not arising from transactions in the ordinary
course of business (“ Material Adverse Effect
”).
(j) Neither the Company nor any of
its subsidiaries does any business in Cuba.
(k) The Company has no subsidiary or
subsidiaries other than as set forth on Schedule III
hereto, and does not control, directly or indirectly, any
corporation, partnership, joint venture, association or other
business association. The issued shares of capital stock of each of
the Company’s subsidiaries have been duly authorized and
validly issued, are fully paid and non-assessable and are owned
legally and beneficially by the Company free and clear of any
security interests, liens, encumbrances, equities or
claims.
(l) There are no legal or
governmental actions, suits or proceedings pending or, to the
knowledge of the Company, threatened, against the Company or any of
its subsidiaries, or to which the Company or any properties of the
Company or any of its subsidiaries is subject, that (A) are
required to be described in the Registration Statement or the
Prospectus but are not described as required; (B) could
reasonably be expected to have a material adverse effect on the
performance of this Agreement or the consummation of any of the
transactions contemplated hereby; or (C) could reasonably be
expected to have a Material Adverse Effect, except as set forth in
or contemplated in the Disclosure Package and the Prospectus
(exclusive of any supplement thereto). There are no statutes,
regulations, capital expenditures, off-balance sheet
11
transactions, contingencies or
agreements, contracts, indentures, leases or other instruments or
documents of a character that are required to be described in the
Registration Statement or the Prospectus or to be filed or
incorporated by reference as an exhibit to the Registration
Statement or any Incorporated Document that are not described,
filed or incorporated as required by the Act or the Exchange Act
(and the Pricing Prospectus contains in all material respects the
same description of the foregoing matters contained in the
Prospectus). The statements in the Prospectus under the heading
“Federal Income Tax Considerations” and in the Pricing
Prospectus and the Prospectus Supplement under the heading
“Certain Federal Income Tax Considerations” fairly
summarize the matters therein described.
(m) Neither the Company nor any of
its subsidiaries is: (A) in violation of (i) its
respective articles of incorporation or by-laws, (ii) any law,
ordinance, administrative or governmental rule or regulation
applicable to the Company or its subsidiaries, which violation
would have a Material Adverse Effect, or (iii) any decree of
any court or governmental agency or body having jurisdiction over
the Company or its subsidiaries; or (B) in default in any
material respect in the performance of any obligation, agreement,
condition or covenant (financial or otherwise) contained in any
bond, debenture, note or any other evidence of indebtedness or in
any material agreement, indenture, lease or other instrument to
which the Company or any of its subsidiaries is a party or by which
the Company or its subsidiaries or any of their respective
properties may be bound, and no such default is
foreseeable.
(n) (A) As of the date of this
Agreement, the Company owns either directly or through investment
interests, 691 properties (the “ Properties ”).
To the best of the Company’s knowledge, neither the Company
nor any of its subsidiaries is in violation of any municipal, state
or federal law, rule or regulation concerning any of their
Properties, which violation would have a Material Adverse Effect;
(B) to the best of the Company’s knowledge, each of the
Properties complies with all applicable zoning laws, ordinances and
regulations in all material respects and, if and to the extent
there is a failure to comply, such failure does not materially
impair the value of any of such Properties and will not result in a
forfeiture or reversion of title thereof; (C) neither the
Company nor any of its subsidiaries has received from any
governmental authority any written notice of any condemnation of,
or zoning change affecting any of, the Properties, and the Company
does not know of any such condemnation or zoning change which is
threatened and which if consummated would have a material adverse
effect on the Company or any of such Properties; (D) the
leases under which the Company leases the Properties as lessor (the
“ Leases ”) are in full force and effect and
have been entered into in the ordinary course of business of the
Company; (E) the Company and each of its subsidiaries has
complied with its respective obligations under the Leases in all
material respects and the Company does not know of any default by
any other party to the Leases which, alone or together with other
such defaults, would have a Material Adverse Effect or material
adverse effect on any of the properties subject to a Lease; and
(F) all liens, charges, encumbrances, claims or restrictions
on or affecting the Properties and assets (including the
Properties) of the Company and its subsidiaries that are required
to be disclosed in the Prospectus are disclosed therein.
(o) Neither the issuance and sale of
the Shares, the execution, delivery or performance of this
Agreement or the Deposit Agreement by the Company, nor the
consummation by the Company of the transactions contemplated hereby
or thereby (including the application of the proceeds from the sale
of the Shares and the designation, issuance and
12
deposit of the Preferred Shares),
nor the fulfillment of the terms hereof or thereof:
(A) requires any consent, approval, authorization or other
order of, or registration or filing with, any court, regulatory
body, administrative agency or other governmental body, agency or
official (except (i) such as may be required for the
registration of the Shares under the Act and compliance with the
securities or blue sky laws of various jurisdictions and
(ii) the filing with the Maryland DAT of the Articles
Supplementary), or conflicts or will conflict with or constitutes
or will constitute a breach or violation of, or a default under,
the articles of incorporation, including the Articles
Supplementary, or by-laws of the Company or any of its
subsidiaries; or (B) conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under, any
agreement, indenture, lease or other instrument to which the
Company or any of its subsidiaries is a party or by which the
Company or any properties of the Company or any of its subsidiaries
may be bound, or violates or will violate any statute, law,
regulation or filing or judgment, injunction, order or decree
applicable to the Company or any of its subsidiaries or any
properties of the Company or any of its subsidiaries, or will
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 the terms of any 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 may be
bound, or to which any property or assets of the Company or any of
its subsidiaries is subject.
(p) To the Company’s
knowledge, (i) KPMG LLP, who have certified or shall certify
the financial statements and schedules included or incorporated by
reference in the Registration Statement, the Pricing Prospectus and
the Prospectus (or any amendment or supplement thereto), was, as of
September 28, 2006 and during the periods covered by the
financial statements on which we reported, an independent
registered public accounting firm with respect to the Company as
required by the Act and the Exchange Act and the applicable
published rules and regulations thereunder and by the Public
Company Accounting Oversight Board and (ii) Ernst &
Young LLP, who have been engaged by the Company since the filing of
such statements and schedules with the Commission, is an
independent registered public accounting firm with respect to the
Company as required by the Act and the Exchange Act and the
applicable published rules and regulations thereunder and by the
Public Company Accounting Oversight Board.
(q) The financial statements,
together with related schedules and notes, included or incorporated
by reference in the Registration Statement, the Pricing Prospectus
and the Prospectus (and any amendment or supplement thereto),
present fairly in all material respects the financial position,
results of operations and changes in financial position of the
Company and its subsidiaries on the basis stated in the
Registration Statement and the Incorporated Documents at the
respective dates or for the respective periods to which they apply.
Such statements and related schedules and notes have been prepared
in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as
disclosed therein. The other financial and statistical information
and data included or incorporated by reference in the Registration
Statement, the Pricing Prospectus and the Prospectus (and any
amendment or supplement thereto) are accurately presented and
prepared on a basis consistent with such financial statements and
the books and records of the Company and its subsidiaries. The pro
forma financial statements and other pro forma financial
information included, or incorporated by reference in, the
Registration Statement, the Pricing Prospectus and the Prospectus
include assumptions that provide a reasonable basis for presenting
the significant
13
effects directly attributable to the
transactions and events described therein, the related pro forma
adjustments give appropriate effect to those assumptions, and the
pro forma adjustments reflect the proper application of those
adjustments to the historical financial statement amounts in the
pro forma financial statements included in the Prospectus, the
Pricing Prospectus and the Registration Statement. The pro forma
financial statements included in the Prospectus , the Pricing
Prospectus and the Registration Statement comply as to form in all
material respects with the applicable accounting requirements of
Regulation S-X under the Act and the pro forma adjustments have
been properly applied to the historical amounts in the compilation
of those statements. The Company has filed with the Commission all
financial statements, together with related schedules and notes,
required to be filed pursuant to Regulation S-X under the
Act.
(r) The execution and delivery of,
and the performance by the Company of its obligations under, this
Agreement and the Deposit Agreement have been duly and validly
authorized by the Company, and this Agreement and the Deposit
Agreement have been duly executed and delivered by the Company and
constitute the valid and legally binding agreements of the Company,
enforceable against the Company in accordance with their terms,
except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors’ rights
generally and by general principles of equity and to the extent
that rights to indemnity and contribution hereunder may be limited
by federal or state securities laws.
(s) Except as disclosed in the
Registration Statement, the Disclosure Package and the Prospectus
(or any amendment or supplement thereto), subsequent to the
respective dates as of which such information is given in the
Registration Statement, the Disclosure Package and the Prospectus
(or any amendment or supplement thereto), neither the Company nor
any of its subsidiaries has incurred any liability or obligation
(financial or other), direct or contingent, or entered into any
transaction (including any off-balance sheet activities or
transactions), not in the ordinary course of business, that is
material to the Company and its subsidiaries, and there has not
been any change in the capital stock, or material increase in the
short-term debt or long-term debt (including any off-balance sheet
activities or transactions), of either the Company or its
subsidiaries, or any material adverse change, or any development
involving or which may reasonably be expected to involve, a
prospective material adverse change, in the condition (financial or
other), business, prospects, net worth or results of operations of
either the Company or its subsidiaries.
(t) The Company and each of its
subsidiaries has good and marketable title to all property (real
and personal) described in the Disclosure Package and the
Prospectus as being owned by each of them (including the
Properties), free and clear of all liens, claims, security
interests or other encumbrances that would materially and adversely
affect the value thereof or materially interfere with the use made
or presently contemplated to be made thereof by them as described
in the Prospectus, except such as are described in the Registration
Statement, the Disclosure Package and the Prospectus, or in any
document filed as an exhibit to the Registration Statement, and
each property described in the Disclosure Package and the
Prospectus as being held under lease by the Company or any of its
subsidiaries is held by it under a valid
