Execution Version
Exhibit 1.1
NATIONAL RETAIL PROPERTIES, INC.
$220,000,000
5.125%
Convertible Senior Notes due 2028
UNDERWRITING AGREEMENT
February 27, 2008
CITIGROUP GLOBAL MARKETS INC.
388 Greenwich Street
New York, New York 10013
BANC OF
AMERICA SECURITIES LLC
40 West 57 th Street
New York, New York 10019
WACHOVIA
CAPITAL MARKETS, LLC
One Wachovia Center
301 South College Street
Charlotte, North Carolina 28288
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 ”) an aggregate principal amount of
$220,000,000 5.125% Convertible Senior Notes due 2028 (the “
Firm Securities ”), to be issued under an indenture
(as the same has been and may be amended and supplemented, the
“ Indenture ”) dated as of March 25, 1998,
as amended and supplemented by a Ninth Supplemental Indenture (the
“ Ninth Supplemental Indenture ”) to be dated as
of March 4, 2008, between the Company and U.S. Bank National
Association, as successor trustee (the “ Trustee
”). The Company also proposes to grant to the Underwriters an
option to purchase up to an additional $33,000,000 principal amount
of such securities solely to cover over-allotments (the “
Option Securities ”; the Option Securities, together
with the Firm Securities, hereinafter called the “
Securities ”). The Securities are convertible in
accordance with their terms and the terms of the Indenture into
shares of common stock, par value $0.01 per share (the “
Common Shares ”), of the Company at the conversion
price set forth in the Prospectus (defined below). The respective
amounts of the Securities to be so purchased by the several
Underwriters are set forth opposite their names in
Schedule I hereto.
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 principal amount of Securities 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 Securities 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 Securities and the Common
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 Securities 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 Securities, 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 Securities 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 reference in the Registration
Statement, the Disclosure Package or the Prospectus are for
clarifying purposes only and are not
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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 (“ EDGAR
”).
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
98.0% of the principal amount thereof, plus accrued interest, if
any, from March 4, 2008, to the Closing Date (as defined in
herein), the principal amount of Securities 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 principal amount of Option Securities
set forth in Schedule I hereto at the same purchase
price set forth in Section 2(a). Said option may be exercised
only to cover over-allotments in the sale of the Firm Securities 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 aggregate
principal amount of the Option Securities 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 Securities nor later than ten (10) Business Days
after the date of such notice. The aggregate principal amount of
Option Securities to be purchased by each Underwriter shall be the
same percentage of the total aggregate principal amount of the
Option Securities to be purchased by the several Underwriters as
such Underwriter is purchasing of the Firm Securities, subject to
such adjustments as the Representatives in their absolute
discretion shall make to ensure that the Option Securities are not
issued in minimum denominations of less than $1,000 or whole
multiples thereof.
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3. Offering by
Underwriters . It is understood that the several Underwriters
propose to offer the Securities for sale to the public as soon
after this Agreement has become effective as in their judgment is
advisable and initially to offer the Securities upon the terms set
forth in the Prospectus.
Each
Underwriter, severally and not jointly, represents and agrees that
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 Securities 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.
4. Delivery of the
Securities and Payment Therefor . Delivery of and payment for
the Securities shall be made at 10:00 a.m., New York City
time, on March 4, 2008, 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
Securities 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 Securities 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 Company shall deliver the Securities to the Representatives for
the respective accounts of the several Underwriters through the
facilities of The Depository Trust Company (“ DTC
”). The Securities shall be global notes registered in the
name of Cede & Co., as nominee for DTC. The interests of
beneficial owners of the Securities will be represented by book
entries on the records of DTC and participating members thereof.
The number and denominations of definitive notes so delivered shall
be as specified by DTC. The definitive notes for the Securities
will be made available for inspection by the Representatives at the
offices of Pillsbury Winthrop Shaw Pittman LLP, New York, New York,
not later than 1:00 p.m., New York time on the Business Day before
the Closing Date, or the applicable Option Closing Date, as the
case may be, or such other date, time and place as the
Representatives and the Company may agree.
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
Securities 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 promptly and, if
requested by the Representatives, will confirm such advice in
writing, immediately after such post-effective amendment has become
effective.
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(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 Securities 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 Securities;
(iii) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Securities
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
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.
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(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 Securities are
offered by the several Underwriters and by all dealers to whom
Securities may be sold, both in connection with the offering and
sale of the Securities 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.
(g) The
Company will: (i) cooperate with the Underwriters and with
counsel for the Underwriters in connection with the registration or
qualification of the Securities for offering and sale by the
Underwriters and by dealers under the securities or blue sky laws
of such
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jurisdictions as the Underwriters may designate; (ii) maintain
such qualifications in effect so long as required for the
distribution of the Securities; (iii) pay any fee of the
Financial Industry Regulatory Authority, 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 Securities,
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 Securities 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 (3) 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.
(l) The
Company will apply the net proceeds from the sale of the Securities
substantially in accordance with the description set forth in the
Prospectus.
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(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 Securities.
(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 REIT or 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 Securities pursuant to this Agreement.
(r) The
Company will not, without the prior written consent of the
Representatives, offer, sell, contract to sell, pledge, or
otherwise dispose of, or enter into any transaction which is
designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company or
any affiliate of the Company or any person in privity with the
Company or any affiliate of the Company, directly or indirectly,
including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or
establish or increase a put equivalent position or liquidate or
decrease a call equivalent position within the meaning of
Section 16 of the Exchange Act, any debt securities or
guarantees thereon (other than the Securities) and any Common
Shares or any securities convertible into, or exercisable, or
exchangeable for, Common Shares; or publicly announce an intention
to effect any such transaction, until sixty (60) days from the
date of the Prospectus, provided , however , that the
Company may (i) issue and sell Common Shares pursuant to the
conversion or exchange of convertible or exchangeable securities or
the exercise of warrants or options, in each case outstanding at
the Execution Time, (ii) grant employee stock options and
restricted shares pursuant to the terms of any equity incentive
plan in effect at the Execution Time, (iii) issue and sell
Common Shares or securities convertible into Common Shares in
connection with the acquisition of Properties or in connection with
joint ventures or similar arrangements, so long as the recipients
agree in writing not to sell or transfer the Common Shares or
securities convertible into Common Shares for a period of sixty
(60) days from the date of the Prospectus without the prior
written consent of the Representatives, (iv) issue and sell
Common Shares pursuant to the dividend reinvestment and stock
purchase plan of the Company in effect at the Execution Time, and
(v) issuances, for no consideration, of no more than 100
shares to one or more persons
8
unaffiliated with the Company as door or drawing prizes in
connection with the Company’s marketing efforts.
(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 will 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) Unless
requested otherwise by the Representatives, the Company will
prepare a final term sheet, containing solely a description of
final terms of the Securities 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 (4) Business Days extension to the
payment deadline) and in any event prior to the Closing Date. The
Company will retain, pursuant to reasonable procedures 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 reserve and keep available at all times, free of
preemptive rights, the maximum number of Common Shares issuable
upon conversion of the Securities.
(v) 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 Common Shares issuable in exchange for the Securities to
be listed and admitted and authorized for trading on the New York
Stock Exchange, subject to notice of issuance.
(w) Between
the date hereof and the Closing Date, the Company will not do or
authorize any act or thing that would result in an adjustment of
the conversion price.
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
9
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
Securities. 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, the
Exchange Act and the Trust Indenture Act of 1939, as amended, and
the rules and regulations promulgated thereunder (the “
Trust Indenture 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
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 statements therein, in the light of
the circumstances under which they were made, not misleading. On
the date that the Registration Statement, any post-effective
amendment or amendments thereto became or will become effective and
on the Closing Date and each Option Closing Date, the Indenture did
or will comply in all material respects with the applicable
requirements of the Trust Indenture Act and the rules thereunder.
The Indenture has been qualified under the Trust Indenture Act. The
representation and warranty contained in this Section 6(b) does not
apply to (i) that part of the registration statement which
shall constitute the Statement of Eligibility and Qualification
(Form T-1) under the Trust Indenture Act of the Trustee or
(ii) 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, if any, 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 Securities 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
10
(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 Securities 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 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) Upon
the delivery of the Securities pursuant to Section 4 of this
Agreement, the Securities will be validly issued pursuant to the
Indenture, will be valid and legally binding obligations of the
Company, and will conform in all material respects to the
description of the Securities contained in the Disclosure Package
and the Prospectus.
(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
11
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) Other
than as set forth on Schedule III hereto, the Company
has no subsidiary or subsidiaries 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
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, 997 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
12
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 Securities, the execution, delivery or
performance of this Agreement by the Company, nor the consummation
by the Company of the transactions contemplated hereby (including
the application of the proceeds from the sale of the Securities),
nor the fulfillment of the terms hereof or of the Indenture:
(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 such as may be required for the registration of
the Securities under the Act and compliance with the securities or
blue sky laws of various jurisdictions), or conflicts or will
conflict with or constitutes or will constitute a breach or
violation of, or a default under, the articles of incorporation 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, each of KPMG LLP and Ernst &
Young LLP, who have certified or shall certify certain 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), is, and was
during the periods covered by the financial statements on which we
reported, 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.
13
(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 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
Company has the corporate power to issue, sell and deliver the
Securities and the Common Shares as provided herein and in the
Indenture; the execution and delivery of, and the performance by
the Company of its obligations under, this Agreement and the
Indenture (including the Ninth Supplemental Indenture thereto) have
been duly and validly authorized by the Company, and this Agreement
and the Indenture (including the Ninth Supplemental Indenture
thereto) 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
14
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, subsisting and
enforceable lease.
(u) The
“significant subsidiaries” of the Company as defined in
Section 1-02(w) of Regulation S-X are set forth in
Schedule III hereto (the “ Significant
Subsidiaries ”).
(v) The
Company has not distributed and, prior to the later to occur of
(x) the Closing Date and (y) completion of the
distribution of the Securities, will not distribute, any offering
material in connection with the offering and sale of the Securities
other than the Registration Statement, the Disclosure Package or
the Prospectus. The Company has not, directly or indirectly:
(i) taken any action designed to cause or to result in, or
that has constituted or which might reasonably be expected to
constitute, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities; or (ii) since the filing of the Registration
Statement (A) sold, bid for, purchased, or paid anyone any
compensation for soliciting purchases of, the Securities or
(B) paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the
Company.
(w) The
Company and each of its subsidiaries possess all certificates,
permits, licenses, franchises and authorizations of governmental or
regulatory authorities (the “ permits ”) as are
necessary to own
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