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Exhibit 1.1
SAUL CENTERS, INC.
3,000,000 Depositary
Shares
Each Representing 1/100th of
a share of 9% Series B Cumulative Redeemable
Preferred Stock (Par Value
$0.01 Per Share)
(Liquidation Preference
Equivalent to $25.00 Per Depositary Share)
UNDERWRITING
AGREEMENT
March 20,
2008
RBC Capital Markets
Corporation
One Liberty Plaza, 6
th
Floor
New York, NY 10006
Ferris, Baker Watts,
Incorporated
100 Light Street, 8
th
Floor
Baltimore, MD 21202
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:
Saul Centers, Inc., a
Maryland corporation (the “ Company ”) and the
sole general partner of Saul Holdings Limited Partnership, a
Maryland limited partnership (the “ Operating
Partnership ”), 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 ”)
3,000,000 shares (the “ Firm Shares ”) of its
depositary shares (the “ Depositary Shares ”),
each representing 1/100th of a share of the Company’s 9%
Series B Cumulative Redeemable Preferred Stock, par value $0.01 per
share (the “ Series B Preferred Stock ”). The
Company also proposes to grant to the Underwriters an option to
purchase up to an additional 450,000 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 B
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 Continental 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 ”), a shelf
registration statement on Form S-3 (file number 333-149463) under
the Act (“ Registration Statement 333-149463 ”),
which registration statement included a prospectus dated
March 10, 2008 (the “ Basic Prospectus ”),
relating to up to $140,000,000 aggregate offering price of 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 333-149463, including any amendments thereto filed prior
to the Execution Time, became effective on March 10, 2008.
Except where the context otherwise requires, Registration Statement
333-149463 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 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 (“ EDGAR
”).
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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). 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 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:
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
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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.
4. Delivery of the Shares
and Payment Therefor . Delivery of and payment for the Shares
shall be made at 10:00 a.m., New York City time, on March 27,
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
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 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
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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 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
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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.
(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
6
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 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 (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 Shares 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 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, pledge or otherwise dispose of any debt
securities issued or guaranteed by the Company or any class of
capital stock (other than the Shares) ranking senior to the
Preferred Shares with respect to dividend rights or rights upon
liquidation, dissolution or winding up 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) Unless requested
otherwise by the Representatives, 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 within the time period required by such
rule. 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 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.
8
(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 B 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 and the Operating Partnership . As of
the date hereof, the Company and the Partnership, jointly and
severally, represent, warrant and covenant to each Underwriter as
follows:
(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, was declared
effective on March 10, 2008. 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 was
declared 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 objecting
to the use of the 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 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.
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(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 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.
(e) 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.
(f) 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.
(g) 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.
10
(h) Each of the Company, the
Partnership and their subsidiaries is a corporation, limited
liability company or limited partnership, 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, limited
liability company or partnership 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
”).
(i) Neither the Company nor
any of its subsidiaries does any business in Cuba.
(j) 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, other than
as set forth on Schedule III hereto, are owned legally and
beneficially by the Company free and clear of any security
interests, liens, encumbrances, equities or claims.
(k) There are no legal or
governmental actions, suits or proceedings pending or, to the
knowledge of the Company, threatened, against the Company, the
Operating Partnership or any of their subsidiaries, or to which the
Company or the Operating Partnership or any properties of the
Company, the Operating Partnership or any of their 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 “
Additional Certain Federal Income Tax Considerations” fairly
summarize the matters therein described.
(l) None of the Company, the
Partnership or their subsidiaries is: (A) in violation of
(i) its respective articles of incorporation, partnership
agreement, operating agreement or by-laws (or analogous governing
instruments), (ii) any law, ordinance,
11
administrative or governmental rule or
regulation applicable to the Company, the Operating Partnership or
any of their 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, the
Operating Partnership or any of their subsidiaries is a party or by
which the Company, the Operating Partnership or any of their
subsidiaries or any of their respective properties may be bound,
and no such default is foreseeable.
(m) (A) As of the
date of this Agreement, the Company owns either directly or
indirectly through its subsidiaries, 54 properties (the “
Properties ”). To the best of the Company’s
knowledge, none of Company, the Operating Partnership or any of
their 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) none of Company,
the Operating Partnership or any of their 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 or any of its
subsidiaries 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 such entity;
(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.
(n) Neither the issuance and
sale of the Shares, the execution, delivery or performance of this
Agreement or the Deposit Agreement by the Company or the Operating
Partnership, nor the consummation by the Company or the Operating
Partnership of the transactions contemplated hereby or thereby
(including the application of the proceeds from the sale of the
Shares and the designation, issuance and 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 (or analogous governing documents) of the
Company or the Operating Partnership or any of their
12
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 the Operating Partnership or any
of their subsidiaries is a party or by which the Company or the
Operating Partnership or any properties of the Company or the
Operating Partnership or any of their 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
the Operating Partnership or any of their subsidiaries or any
properties of the Company or the Operating Partnership or any of
their subsidiaries, or will result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the
Company or the Operating Partnership or any of their subsidiaries
pursuant to the terms of any agreement or instrument to which the
Company or the Operating Partnership or any of their subsidiaries
is a party or by which the Company or the Operating Partnership or
any of their subsidiaries may be bound, or to which any property or
assets of the Company or the Operating Partnership or any of their
subsidiaries is subject.
(o) To the Company’s
knowledge, Ernst & Young LLP, who has 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), is and was, as of the date of this Agreement
and during the periods covered by the financial statements on which
it 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.
(p) 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.
13
(q) The Company has the
corporate power to issue, sell and deliver the Shares and the
Preferred Shares as provided herein and in the Deposit Agreement;
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; the execution and delivery of, and the performance
by the Operating Partnership of its obligations under, this
Agreement have been duly and validly authorized by the Operating
Partnership, and this Agreement has been duly executed and
delivered by the Operating Partnership and constitutes the valid
and legally binding agreement of the Operating Partnership,
enforceable against the Operating Partnership 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.
(r) 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), none of the Company, the
Operating Partnership or any of their 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 any of the
Company or the Operating Partnership or their 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 any of the Company or the
Operating Partnership or their subsidiaries.
(s) The Company, the
Operating Partnership and each of their 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.
14
(t) 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 ”).
(u) 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
Shares, will not distribute, any offering material in connection
with the offering and sale of the Shares 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 Shares; or
(ii) since the filing of the Registration Statement
(A) sold, bid for, purchased, or paid anyone any compensation
for soliciting purchases of, the Shares or (B) paid or agreed
to pay to any person any compensation for soliciting another to
purchase any other securities of the Company.
(v) The Company, the
Operating Partnership and each of their subsidiaries possess all
certificates, permits, licenses, franchises and authorizations of
governmental or regulatory authorities (the “ permits
”) as are necessary to own their respective properties and to
conduct their respective businesses in the manner described in the
Disclosure Package and the Prospectus, where such failure to
possess could have a Material Adverse Effect, subject to such
qualifications as may be set forth in the Disclosure Package and
the Prospectus. The Company, the Operating Partnership and each of
their subsidiaries has fulfilled and performed all of their
respective material obligations with respect to such permits, and
no event has occurred which allows, or after notice or lapse of
time would allow, revocation or termination thereof or which would
result in any other material impairment of the rights of the holder
of any such permit, subject in each case to such qualification as
may be set forth in the Disclosure Package and the Prospectus.
Except as described in the Disclosure Package and the Prospectus,
exclusive of any supplement thereto, neither the revocation or
modification of any permit singly or in the aggregate, nor the
announcement of an unfavorable decision, ruling or finding with
respect to any permit, would have a Material Adverse
Effect.
(w) The Company, the
Operating Partnership and each of their subsidiaries have
established and maintain disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) that are
designed to ensure that information required to be disclosed by the
Company in the reports that it files or submits under the Exchange
Act is recorded, processed, summarized and reported, within the
time periods specified in the Commission’s rules and forms
and is accumulated and communicated to the Company’s
management, including its chief executive officer and chief
financial officer, or persons performing similar functions, as
appropriate to allow timely decisions regarding required
disclosure; and the Company, the Operating Partnership and each of
their subsidiaries maintain a system of internal control over
financial reporting sufficient to provide reasonable assurance
regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in
accordance with generally accepted accounting principles and which
includes policies and procedures that (i) pertain to the
maintenance of records that in reasonable detail accurately and
fairly reflect the transactions and dispositions of the assets of
the Company, the Operating Partnership and each of their
subsidiaries, (ii) provide reasonable assurance that
transactions are recorded as necessary to permit preparation of
financial statements in accordance with generally accepted
accounting principles and that receipts and expenditures of
the
15
Company, the Operating Partnership and
each of their subsidiaries are being made only in accordance with
the authorization of management, and (iii) provide reasonable
assurance regarding prevention or timely detection of unauthorized
acquisitions, use or dispositions of assets that could have a
material effect on the financial statements. The Company’s
disclosure controls and procedures have been evaluated for
effectiveness as of the end of the most recent period required to
be evaluated by the Company which precedes the date of the
Prospectus and were effective in all material respects to perform
the functions for which they were established. Based on the most
recent evaluation of its internal control over financial reporting,
the Company was not aware of (i) any material weaknesses in
the design or operation of internal control over financial
reporting or (ii) any fraud, whether or not material, that
involves management or other employees who have a significant role
in the Company’s internal control over financial reporting.
There has been no change in the Company’s internal control
over financial reporting
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