COUSINS PROPERTIES
INCORPORATED
40,000,000 Shares of Common
Stock
Dated: September 15,
2009
Cousins Properties Incorporated
(a Georgia corporation)
40,000,000 Shares of Common Stock
(Par Value $1.00 Per Share)
UNDERWRITING AGREEMENT
MERRILL LYNCH
& CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Morgan Stanley & Co. Incorporated
J.P. Morgan Securities Inc.
as Representatives of the several
Underwriters
c/o Merrill
Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
One Bryant Park
New York, New York 10036; and
Morgan Stanley
& Co. Incorporated
1585 Broadway
New York, New York 10036; and
J.P. Morgan
Securities Inc.
383 Madison Avenue
New York, New York 10179
Cousins Properties
Incorporated, a Georgia corporation (the “Company”),
confirms its agreement with Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated (“Merrill
Lynch”) and each of the other Underwriters named in
Schedule A hereto (collectively, the
“Underwriters,” which term shall also include any
underwriter substituted as hereinafter provided in Section 10
hereof), for whom Merrill Lynch, Morgan Stanley & Co.
Incorporated (“Morgan Stanley”) and J.P. Morgan
Securities Inc. (“J.P. Morgan”) are acting as
representatives (in such capacity, the
“Representatives”), with respect to the issue and sale
by the Company and the purchase by the Underwriters, acting
severally and not jointly, of the respective numbers of shares of
Common Stock, par value $1.00 per share, of the Company
(“Common Stock”) set forth in said Schedule A, and
with respect to the grant by the Company to the Underwriters,
acting severally and not jointly, of the option described in
Section 2(b) hereof to purchase all or any part of 6,000,000
additional shares of Common Stock to cover overallotments, if any.
The aforesaid 40,000,000 shares of Common Stock (the “Initial
Securities”) to be purchased by the Underwriters and all or
any part of the 6,000,000 shares of Common Stock subject to the
option described in Section 2(b) hereof (the “Option
Securities”) are hereinafter called, collectively, the
“Securities.”
The Company
understands that the Underwriters propose to make a public offering
of the Securities as soon as the Representatives deem advisable
after this Underwriting Agreement (the “Agreement”) has
been executed and delivered.
The Company and
the Underwriters agree that up to 170,000 shares of the Securities
to be purchased by the Underwriters (the “Reserved
Securities”) shall be reserved for sale by the Underwriters
to certain eligible employees and persons having business
relationships with the Company (the “Invitees”), as
part of the distribution of the Securities by the Underwriters,
subject to the terms of this Agreement, the applicable rules,
regulations and interpretations of the Financial Industry
Regulatory Authority, Inc. (“FINRA”) and all other
applicable laws, rules and regulations. To the extent that such
Reserved Securities are not orally confirmed for purchase by
Invitees by the end of the first business day after the date of
this Agreement, such Reserved Securities may be offered to the
public as part of the public offering contemplated
hereby.
The Company has
filed with the Securities and Exchange Commission (the
“Commission”) a shelf registration statement on
Form S-3 (No. 333-158234), including the related base
prospectus (the “Base Prospectus”), which registration
statement was declared effective by the Commission on April 13,
2009 in accordance with the rules and regulations of the Commission
(the “1933 Act Regulations”) under the Securities Act
of 1933, as amended (the “1933 Act”). Such registration
statement covers the registration of the Securities under the 1933
Act. Promptly after execution and delivery of this Agreement, the
Company will prepare and file a final prospectus (the “Final
Prospectus”) in accordance with the provisions of
Rule 430B (“Rule 430B”) of the 1933 Act
Regulations and paragraph (b) of Rule 424
(“Rule 424(b)”) of the 1933 Act Regulations. Any
information included in the Final Prospectus that was omitted from
such registration statement at the time it became effective but
that is deemed to be part of and included in such registration
statement pursuant to Rule 430B is referred to as
“Rule 430B Information.” Each prospectus used in
connection with the offering of the Securities that omitted
Rule 430B Information, together with the Base Prospectus, is
herein called a “preliminary prospectus.” Such
registration statement, at any given time, including the amendments
thereto to such time, the exhibits and any schedules thereto at
such time, the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the 1933 Act at such time and the
documents and information (including the 430B Information)
otherwise deemed to be a part thereof or included or incorporated
therein by 1933 Act Regulations, is herein called the
“Registration Statement.” The Registration Statement at
the time it originally became effective is herein called the
“Original Registration Statement.” The Final Prospectus
in the form first furnished to the Underwriters for use in
connection with the offering of the Securities, including the
documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the 1933 Act at the time of the
execution of this Agreement and any preliminary prospectuses that
form a part thereof (including any prospectus wrapper), is herein
called the “Prospectus.” For purposes of this
Agreement, all references to the Registration Statement, any
preliminary prospectus, the Prospectus or any amendment or
supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system
(“EDGAR”).
Unless the context
otherwise clearly requires, all references in this Agreement to
financial statements and schedules and other information which is
“contained,” “included” or
“stated” in the Registration Statement, any preliminary
prospectus or the Prospectus (or other references of like import)
shall be deemed to mean and include all such financial statements
and schedules and other information which is incorporated by
reference in or otherwise deemed by 1933 Act Regulations to be a
part of or included in the Registration Statement, any preliminary
prospectus or the Prospectus, as the case may be; and all
references in this Agreement to amendments or supplements to the
Registration Statement, any preliminary prospectus or the
Prospectus shall be deemed to mean and include the filing of any
document under the Securities Exchange Act of 1934, as amended (the
“1934 Act”) which is incorporated by reference in or
otherwise deemed by 1933 Act Regulations to be a part of or
included in the Registration Statement, such preliminary prospectus
or the Prospectus, as the case may be.
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SECTION 1.
Representations, Warranties and Agreements .
(a)
Representations and Warranties by the Company . The Company
represents and warrants to each Underwriter as of the date hereof,
the Applicable Time referred to in Section 1(a)(i) hereof and
as of the Closing Time referred to in Section 2(c) hereof, and as
of each Date of Delivery (if any) referred to in Section 2(b)
hereof, and agrees with each Underwriter, as follows:
(i) Compliance
with Registration Requirements . The Company has filed with the
Commission a shelf registration statement on Form S-3 (File
No. 333-158234) under the 1933 Act, in respect of the Common
Stock (including the Securities) on March 27, 2009, which
contains the Base Prospectus, to be used in connection with the
public offering and sale of the Securities; the Company satisfied
on March 27, 2009 and has thereafter continuously satisfied
all eligibility requirements for use of Form S-3 as contemplated by
the Registration Statement and this Agreement; the Original
Registration Statement became effective under the 1933 Act on
April 13, 2009 and is currently effective; the Company has
complied to the Commission’s satisfaction with all requests
of the Commission for additional or supplemental information with
respect to the Registration Statement or otherwise; no stop order
suspending the effectiveness of the Registration Statement or any
part thereof has been issued under the 1933 Act and no proceeding
for that purpose has been instituted or are pending or, to the
knowledge of the Company, are threatened or contemplated by the
Commission, and no notice of objection of the Commission to the use
of such form of Registration Statement or any post-effective
amendment thereto has been received by the Company. Furthermore,
the Company is not an ineligible issuer (as defined in
Rule 405 of the 1933 Act Regulations), without taking into
account any determination that it is not necessary that the Company
not be considered an ineligible issuer. The Company has paid all
filing fees required by the Commission with respect to the
Registration Statement.
(ii)
Registration Statement, Prospectus and Disclosure at Time of
Sale . Neither the Company nor any person acting on its behalf
has made any (i) written or oral communication relating to the
Securities that would constitute an offer of such Securities prior
to the filing of the Original Registration Statement by the Company
or (ii) any written communication relating to the Securities
made after the filing of the Original Registration Statement by the
Company that was required to but that has not been filed with the
Commission in accordance with the 1933 Act Regulations.
At
the respective times the Original Registration Statement and each
amendment thereto became effective, at each deemed effective date
with respect to the Underwriters pursuant to Rule 430B(f)(2)
of the 1933 Act Regulations and at the Closing Time (and, if any
Option Securities are purchased, at the Date of Delivery), the
Registration Statement complied and will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations and did not and will not contain an untrue statement of
a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and the Prospectus, any preliminary prospectus and any
supplement thereto or prospectus wrapper prepared in connection
therewith, at their respective times of filing or issuance and at
the Closing Time, complied and will comply with any applicable laws
or regulations of foreign jurisdictions in which the Prospectus and
such preliminary prospectus, as amended or supplemented, if
applicable, are distributed in connection with the offer and sale
of the Securities and the Reserved Securities.
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Neither
the Prospectus nor any amendments or supplements thereto, at the
time the Prospectus or any such amendment or supplement was issued
and at the Closing Time (and, if any Option Securities are
purchased, at the Date of Delivery), included or will include an
untrue statement of a material fact or omitted or will 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.
Each
preliminary prospectus (including the prospectus or prospectuses
filed as part of the Original Registration Statement or any
amendment thereto) complied when so filed with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with this
offering was identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the
extent permitted by Regulation S-T.
As
of the Applicable Time, neither (x) the Issuer General Use
Free Writing Prospectus(es) (as defined below) issued at or prior
to the Applicable Time (as defined below) the Statutory Prospectus
(as defined below) and the information included on Schedule B
hereto, all considered together (collectively, the “General
Disclosure Package”), nor (y) any individual Issuer Limited
Use Free Writing Prospectus, when considered together with the
General Disclosure Package, included any untrue statement of a
material fact or omitted 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.
As
used in this subsection and elsewhere in this Agreement:
“Applicable
Time” means 7:00 a.m. on September 16, 2009.
“Issuer
Free Writing Prospectus” means any “issuer free writing
prospectus,” as defined in Rule 433 of the 1933 Act
Regulations (“Rule 433”), relating to the
Securities that (i) is required to be filed with the
Commission by the Company, (ii) is a “road show that is
a written communication” within the meaning of
Rule 433(d)(8)(i), whether or not required to be filed with
the Commission or (iii) is exempt from filing pursuant to
Rule 433(d)(5)(i) because it contains a description of the
Securities or of the offering that does not reflect the final
terms, in each case in the form filed or required to be filed with
the Commission or, if not required to be filed, in the form
retained in the Company’s records pursuant to
Rule 433(g).
“Issuer
General Use Free Writing Prospectus” means any Issuer Free
Writing Prospectus that is intended for general distribution to
prospective investors, as evidenced by its being specified in
Schedule C hereto.
“Issuer
Limited Use Free Writing Prospectus” means any Issuer Free
Writing Prospectus that is not an Issuer General Use Free Writing
Prospectus.
“Statutory
Prospectus” as of any time means the prospectus relating to
the Securities that is included in the Registration Statement
immediately prior to that time, including any document incorporated
by reference therein and any preliminary or other prospectus deemed
to be a part thereof.
Each
Issuer Free Writing Prospectus, as of its issue date and at all
subsequent times through the completion of the public offer and
sale of the Securities or until any earlier date that the Company
notified or notifies the Representatives as described in
Section 3(e), did not, does not and will not include any
information that conflicted, conflicts or will conflict with the
information contained in the Registration Statement, General
Disclosure Package, or the Prospectus.
4
The
representations and warranties in this subsection shall not apply
to statements in or omissions from the Registration Statement,
General Disclosure Package, the Prospectus or any Issuer Free
Writing Prospectus made in reliance upon and in conformity with
(1) written information furnished to the Company by any
Underwriter through the Representatives expressly for use therein
(it being understood and agreed that the Underwriter Information
(as hereinafter defined) constitutes all of such information) and
(2) the information contained in any Statement of Eligibility
of a trustee filed as an exhibit to the Registration
Statement.
(iii)
Incorporated Documents . The documents incorporated or
deemed to be incorporated by reference in the Registration
Statement and the Prospectus, when they became effective or at the
time they were or hereafter are filed with the Commission, complied
and will comply in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations or the 1934 Act and the rules and regulations of
the Commission thereunder (the “1934 Act Regulations”),
as applicable, and, when read together with the other information
in the General Disclosure Package and Prospectus, (a) at the
time the Original Registration Statement became effective,
(b) at the earlier of time the Prospectus was first used and
the date and time of the first contract of sale of Securities in
this offering and (c) at the Closing Time (and if any Option
Securities are purchased, at the Date of Delivery), did not and
will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the
circumstances under which they were made.
(iv)
Independent Accountants . Deloitte & Touche LLP, who
audited the consolidated financial statements and schedule included
in the Registration Statement, the General Disclosure Package and
the Prospectus, is an independent registered public accounting firm
as required by the 1933 Act, the 1933 Act Regulations, the 1934 Act
and the 1934 Act Regulations as well as the Public Company
Accounting Oversight Board.
(v) Financial
Statements . The financial statements included in the
Registration Statement, the General Disclosure Package and the
Prospectus, together with the related schedule and notes, present
fairly, in all material respects, the financial position of the
Company, its consolidated subsidiaries and its joint ventures (both
consolidated and unconsolidated) at the dates indicated and the
consolidated statement of income, stockholders’ investment
and cash flows of the Company, its consolidated subsidiaries and
its joint ventures (both consolidated and unconsolidated), as
applicable, for the periods specified; and, except as may be stated
in the related notes thereto, said financial statements have been
prepared in conformity with accounting principles generally
accepted in the United States (“GAAP”) applied on a
consistent basis throughout the periods involved; provided,
however, that those financial statements of the Company included or
incorporated by reference in the Registration Statement, the
General Disclosure Package and the Prospectus that are unaudited
are subject to year end adjustments and do not contain all
footnotes that may be required under GAAP for annual financial
statements. The supporting schedule, when considered in relation to
the basic consolidated financial statements taken as a whole,
presents fairly, in all material respects, the information set
forth therein. Amounts included in the supporting schedule have
been compiled or derived from information that has been prepared in
accordance with GAAP. The selected financial data and the summary
financial information included in the General Disclosure Package
and the Prospectus present fairly, in all material respects, the
information shown therein and have been
5
compiled on a
basis consistent with that of the audited and unaudited financial
statements, as the case may be, included in the Registration
Statement. Without limiting the foregoing, the Company has properly
reflected all impairments on a timely basis in accordance with GAAP
and no such impairments exist that should have been reflected in
the Company’s consolidated financial statements in accordance
with GAAP that were not so reflected. There are currently no
impairments that would need to be reflected in the Company’s
consolidated financial statements in accordance with GAAP in its
periodic reports to be filed in accordance with the 1934 Act and
the 1934 Act Regulations that have not already been disclosed in
previously filed reports. The pro forma financial data included in
the Registration Statement, the General Disclosure Package and the
Prospectus, if any, present fairly, in all material respects, the
information shown therein. The disclosures contained in the
Registration Statement, the General Disclosure Package or the
Prospectus regarding “non-GAAP financial measures” (as
such term is defined by the rules and regulations of the
Commission), if any, comply with Regulation G under the 1934
Act and Item 10 of Regulation S-K of the 1933 Act Regulations,
to the extent applicable.
(vi) No
Material Adverse Change in Business . Since the respective
dates as of which information is given in the Registration
Statement, the General Disclosure Package or the Prospectus (in
each case as supplemented or amended), except as otherwise stated
therein, (A) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, including, but not limited to, the
impact of any material adverse change in any joint venture, whether
or not arising in the ordinary course of business (a
“Material Adverse Effect”), (B) without limiting
the foregoing, neither the Company nor any of its subsidiaries or
joint ventures has sustained any material loss or interference with
its assets, businesses or properties (whether owned or leased) from
fire, explosion, earthquake, flood or other calamity, whether or
not covered by insurance, that would reasonably be expected to
result in a Material Adverse Effect, (C) there have been no
transactions entered into by the Company or any of its
Subsidiaries, as well as its Joint Ventures, other than those in
the ordinary course of business, which are material with respect to
the Company and its subsidiaries considered as one enterprise,
(D) there has been no obligation or liability, contingent or
otherwise, directly or indirectly incurred by the Company or any
subsidiary or joint venture that would reasonably be expected to
have a Material Adverse Effect, (E) except for regular
quarterly dividends on the Common Stock and requisite dividends on
the Company’s 7 3 / 4
% Series A Cumulative
Redeemable Preferred Stock par value $1.00 per share, and 7
1 / 2
% Series B Cumulative
Redeemable Preferred Stock, par value $1.00 per share in amounts
per share that are described in the Registration Statement, General
Disclosure Package and Prospectus, there has been no dividend or
distribution of any kind declared, paid or made by the Company on
any class of its capital stock.
(vii) Good
Standing of the Company . The Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Georgia and has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement,
General Disclosure Package and the Prospectus and to enter into and
perform its obligations under this Agreement; and the Company is
duly qualified as a foreign corporation to transact business and is
in good standing in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure, individually or in the aggregate, so to qualify or to be
in good standing would not reasonably be expected to result in a
Material Adverse Effect.
6
(viii) Good
Standing of Subsidiaries . The Company represents and warrants
that set forth on Schedule D are each of its subsidiaries that
are material, financial or otherwise, to the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise (each a “ Subsidiary
” and collectively, the “ Subsidiaries ”)
and set forth on Schedule E are each of its joint ventures
(that are not also Subsidiaries) that are material, financial or
otherwise, to the earnings, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise
(each a “ Joint Venture ” and collectively, the
“ Joint Ventures ”). Each Subsidiary and Joint
Venture has been duly organized and is validly existing as a
corporation, limited liability company, limited partnership or
limited liability limited partnership, as the case may be, in good
standing under the laws of the jurisdiction of its incorporation,
organization or formation, has corporate or other applicable
entity, power and authority to own, lease and operate its
properties and to conduct its business as described in the
Registration Statement, General Disclosure Package and the
Prospectus and is duly qualified as a foreign corporation or other
applicable entity to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good
standing would not reasonably be expected to result in a Material
Adverse Effect; except as otherwise disclosed in the Registration
Statement, General Disclosure Package and the Prospectus all of the
issued and outstanding capital stock or other applicable entity
interests, which are owned directly or indirectly by the Company,
of each such Subsidiary and Joint Venture has been duly authorized
and validly issued, is fully paid and, in the case of capital
stock, non-assessable and, in the case of any other equity
interests, exempts the holder thereof from any expense or liability
beyond the amount of such holder’s investment except as
otherwise described in the Registration Statement, General
Disclosure Package and the Prospectus or as would not reasonably be
expected to result in a Material Adverse Effect, and, each of the
shares of capital stock or other applicable entity interests owned,
directly or indirectly by the Company, is owned by the Company,
directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity;
none of the outstanding shares of capital stock or other applicable
entity interests, which are owned directly or indirectly by the
Company, of any Subsidiary or Joint Venture was issued in violation
of the preemptive, co-sale, registration, right of first refusal or
similar rights of any securityholder of such Subsidiary or Joint
Venture or any other person. The only subsidiaries of the Company
are (a) the Subsidiaries listed on Schedule D hereto and
the Joint Ventures listed on Schedule E hereto and
(b) certain other subsidiaries which, considered in the
aggregate as a single subsidiary, do not constitute a
“significant subsidiary” as defined in Rule 1-02
of Regulation S-X.
(ix)
Capitalization . The authorized, issued and outstanding
capital stock of the Company is as set forth in the General
Disclosure Package and the Prospectus in the column entitled
“Actual” under the caption “Capitalization”
(except for subsequent issuances, if any, pursuant to this
Agreement, pursuant to the Company’s common stock dividend
declared on July 15, 2009 referred to in the General
Disclosure Package and the Prospectus, pursuant to reservations,
agreements or employee benefit plans referred to in the General
Disclosure Package and the Prospectus or pursuant to the exercise
of convertible securities or options referred to in the General
Disclosure Package and the Prospectus). The shares of issued and
outstanding capital stock of the Company have been duly authorized
and validly issued and are fully paid and non-assessable; none of
the outstanding shares of capital stock of the Company was issued
in violation of the preemptive, co-sale, registrations, right of
refusal or other similar rights of any securityholder of the
Company or any other person. Except as disclosed in the
Registration Statement, General Disclosure Package and Prospectus,
there are no outstanding (A) securities or obligations of the
Company or any of its Subsidiaries convertible into or exchangeable
for any equity interests of the Company or any such Subsidiary,
(B) warrants, rights or options to subscribe for or purchase
from the Company or any Subsidiary any such equity interests or any
such convertible or exchangeable securities or obligations or
(C) obligations of the Company or
7
any Subsidiary
to issue any equity interests, any such convertible or exchangeable
securities or obligation, or any such warrants, rights or options.
Except as disclosed in the Registration Statement, General
Disclosure Package and Prospectus, or as would not reasonably be
expected to result in a Material Adverse Effect, there are no
outstanding (A) securities or obligations of any Joint Venture
convertible into or exchangeable for any equity interests of such
Joint Venture, (B) warrants, rights or options to subscribe
for or purchase from any Joint Venture any such equity interests or
any such convertible or exchangeable securities or obligations or
(C) obligations of the Joint Venture to issue any equity
interests, any such convertible or exchangeable securities or
obligation, or any such warrants, rights or options. The
Company’s Common Stock has been registered pursuant to
Section 12(b) of the 1934 Act and is authorized for trading on the
New York Stock Exchange (“NYSE”). The Company is in
compliance with the rules and regulations of the NYSE, including
without limitation, the requirements for continued listing of the
Common Shares on the NYSE, and, there are no actions, suits or
proceedings pending or, to the Company’s knowledge,
threatened or contemplated, and the Company has not received any
notice from the NYSE, regarding the revocation of such or otherwise
regarding the delisting of the Common Shares from the NYSE. The
Company has notified the NYSE of its intention to apply to list the
Securities on the NYSE and has taken, or prior to the Closing Time,
will take, all other reasonable and necessary action to effect the
listing of the Securities on the NYSE upon the closing of the
transactions contemplated hereby.
(x)
Authorization of Agreement . This Agreement has been duly
authorized, executed and delivered by the Company.
(xi)
Authorization and Description of Securities . The Securities
have been duly authorized for issuance and sale to the Underwriters
pursuant to this Agreement and, when issued and delivered by the
Company pursuant to this Agreement against payment of the
consideration set forth herein, will be validly issued, fully paid
and non-assessable; the Common Stock conforms to all statements
relating thereto contained in the Registration Statement, General
Disclosure Package and Prospectus and such description conforms, in
all material respects, to the rights set forth in the instruments
defining the same; no holder of the Securities will be subject to
personal liability by reason of being such a holder; and the
issuance of the Securities is not subject to the preemptive,
co-sale, registration, right of first refusal or other similar
rights of any securityholder of the Company or any other
person.
(xii) Absence
of Defaults and Conflicts . Neither the Company nor any of its
Subsidiaries, nor any Joint Venture, is (i) in violation of
its charter, by-laws, operating agreement, partnership agreement or
other applicable organizational documents, as the case may be, or
(ii) in default in the performance or observance nor has any
event occurred which with notice, lapse of time or both would
constitute a default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which
the Company or any of its subsidiaries or any Joint Venture is a
party or by which it or any of them may be bound, or to which any
of the property or assets of the Company or any subsidiary or any
Joint Venture is subject (collectively, “Agreements and
Instruments”) except, in the case of clause (ii) above,
for such violations or defaults that would not reasonably be
expected to result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement and the consummation of
the transactions contemplated herein and in the Registration
Statement, General Disclosure Package and Prospectus (including the
issuance and sale of the Securities and the use of the proceeds
from the sale of the Securities as described in the Registration
Statement, General Disclosure Package and Prospectus under the
caption “Use of Proceeds”) and compliance by the
Company with its obligations hereunder have been duly authorized by
all necessary corporate
8
action, and do
not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of,
or default or Repayment Event (as defined below) under, or result
in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any subsidiary or
Joint Venture pursuant to, the Agreements and Instruments (except
for such conflicts, breaches, defaults or Repayment Events or
liens, charges or encumbrances that would not reasonably be
expected to result in a Material Adverse Effect), nor will such
action result in any violation of (Y) the provisions of the
charter, by-laws, operating agreement, partnership agreement or
other applicable organizational documents, as the as may be, of the
Company or any Subsidiary or Joint Venture or (Z) any
applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any
subsidiary or Joint Venture or any of their assets, properties or
operations except, in the case of clause (Z), for such violations
that would not reasonably be expected to result in a Material
Adverse Effect. The Company and each subsidiary and Joint Venture
is currently in compliance with all laws, statutes, rules,
regulations, judgments, orders, writs or decrees of any government,
government instrumentality or court, domestic or foreign, that are
applicable to it and its properties, except where failure thereof
would not reasonably be expected to result in a Material Adverse
Effect. As used herein, a “Repayment Event” means any
event or condition which gives the holder of any note, debenture or
other evidence of indebtedness (or any person acting on such
holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by
the Company or any subsidiary or Joint Venture.
(xiii) Absence
of Labor Dispute . No labor dispute with the employees of the
Company or any subsidiary exists or, to the knowledge of the
Company, is imminent, and the Company is not aware of any existing
or imminent labor disturbance by the employees of any of its or any
subsidiary’s or Joint Venture’s principal suppliers,
customers, tenants or contractors, which, in either case, would
reasonably be expected to result in a Material Adverse
Effect.
(xiv) Absence
of Proceedings . Except as otherwise disclosed in the
Registration Statement, General Disclosure Package and Prospectus,
there is no action, suit, proceeding, inquiry or investigation
before or brought by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the
Company, threatened, against or affecting the Company or any
subsidiary or Joint Venture, which would reasonably be expected to
result in a Material Adverse Effect, or which would materially and
adversely affect the properties or assets of the Company and its
subsidiaries considered as one enterprise or the consummation of
the transactions contemplated in this Agreement or the performance
by the Company of its obligations hereunder; the aggregate of all
pending legal or governmental proceedings to which the Company or
any subsidiary or Joint Venture is a party or of which any of their
respective property or assets is the subject which are not
described in the Registration Statement, General Disclosure Package
and Prospectus, including ordinary routine litigation incidental to
the business, would not reasonably be expected to result in,
individually or in the aggregate, a Material Adverse
Effect.
(xv) Accuracy
of Exhibits . There are no contracts or documents that are
required to be described in the Registration Statement, the General
Disclosure Package and the Prospectus or the documents incorporated
by reference therein or to be filed as exhibits thereto which have
not been so described or filed as required.
(xvi)
Possession of Intellectual Property . The Company and its
subsidiaries and Joint Ventures own or possess, license, or have
other rights to use or can acquire on reasonable terms rights with
respect to patents, licenses, inventions, copyrights, know-how
(including trade secrets
9
and other
unpatented and/or unpatentable proprietary or confidential
information, systems, or procedures, whether or not patentable),
trademarks, service marks, trade names and other intellectual
property (collectively, “Intellectual Property”)
necessary to carry on the business now operated by them as
described in the Registration Statement, the General Disclosure
Package and the Prospectus, except where the failure so to own,
possess or license or have other rights to use or acquire would not
reasonably be expected, singly or in the aggregate, to result in a
Material Adverse Effect. Neither the Company nor any of its
subsidiaries or Joint Ventures has received any notice of, or is
otherwise aware of any infringement of or conflict with asserted
rights of others with respect to any Intellectual Property or of
any facts or circumstances which would render any Intellectual
Property owned, possessed or licensed by the Company or any of its
subsidiaries or Joint Ventures invalid or inadequate to protect the
interest of the Company or any of its subsidiaries or Joint
Ventures therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or
invalidity or inadequacy, singly or in the aggregate, would
reasonably be expected to result in a Material Adverse
Effect.
(xvii) Absence
of Manipulation . Neither the Company nor any affiliate of the
Company has taken, nor will the Company or any affiliate take,
directly or indirectly, any action which is designed to or which
has constituted or which would be expected to cause or result in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities in
violation of any applicable law.
(xviii) Absence
of Further Requirements . No filing with, or authorization,
approval, consent, license, order, registration, qualification or
decree of, any court or governmental authority or agency is
necessary or required for the performance by the Company of its
obligations hereunder, in connection with the offering, issuance or
sale of the Securities hereunder or the consummation of the
transactions contemplated by this Agreement, except (i) such
as have been already obtained or as may be required under the 1933
Act or the 1933 Act Regulations and (ii) such as have been
obtained under the laws and regulations of jurisdictions outside of
the United States in which the Reserved Securities are
offered.
(xix)
Possession of Licenses and Permits . The Company and its
subsidiaries as well as its Joint Ventures possess such permits,
licenses, approvals, consents and other authorizations
(collectively, “Governmental Licenses”) issued by the
appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them as
described in the Registration Statement, General Disclosure Package
and Prospectus, except where the failure so to possess would not,
singly or in the aggregate, reasonably be expected to result in a
Material Adverse Effect; the Company and its subsidiaries and Joint
Ventures are in compliance with the terms and conditions of all
such Governmental Licenses, except where the failure so to comply
would not, singly or in the aggregate, reasonably be expected to
result in a Material Adverse Effect; all of the Governmental
Licenses are valid and in full force and effect, except when the
invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not,
singly or in the aggregate, reasonably be expected to result in a
Material Adverse Effect; and neither the Company nor any of its
subsidiaries or Joint Ventures has received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would
reasonably be expected to result in a Material Adverse
Effect.
(xx) Title to
Property . The Company and its Subsidiaries as well as its
Joint Ventures have good title to all real property and other
properties reflected as owned in the Company’s consolidated
financial statements, in each case, free and clear of all
mortgages, pledges, liens,
10
security
interests, claims, restrictions or encumbrances of any kind except
such as (a) are described in the Registration Statement, General
Disclosure Package and the Prospectus or (b) would not
reasonably be expected to, individually or in the aggregate, result
in a Material Adverse Effect; and, to the Company’s
knowledge, all of the leases and subleases material to the business
of the Company and its Subsidiaries and Joint Ventures, and under
which the Company or any of its Subsidiaries or Joint Ventures
holds or leases properties described in the Registration Statement,
General Disclosure Package and the Prospectus, are in full force
and effect and enforceable in accordance with their terms except as
may be limited by bankruptcy, insolvency or similar laws affecting
the rights of creditors and with such exceptions as do not
materially interfere with the use of the property, and neither the
Company nor any Subsidiary or Joint Venture has any notice of any
material claim of any sort that has been asserted by anyone adverse
to the rights of the Company or any Subsidiary or Joint Venture
under any of the leases or subleases mentioned above, or affecting
or questioning the rights of the Company or such Subsidiary or
Joint Venture to the enforceability of said lease or sublease,
possession of the leased or subleased premises under any such lease
or sublease, as the case may be, except in each case for such
matters as would not reasonably be expected to individually or in
the aggregate result in a Material Adverse Effect. Except as
otherwise disclosed in the Registration Statement, General
Disclosure Package and Prospectus, or as would not, individually or
in the aggregate, reasonably be expected to result in a Material
Adverse Effect, (i) no tenant under any of the leases pursuant
to which the Company or its Subsidiary or Joint Venture leases
their properties has an option or right of first refusal to
purchase the premises demised under such lease, (ii) the use
and occupancy of each of the properties of the Company and its
Subsidiaries and Joint Ventures comply with all applicable laws,
including, but not limited to, codes and zoning laws and
regulations, (iii) no properties are subject to, and the
Company has no knowledge of, any contemplated condemnation or
zoning change that would affect the size of, use of, improvement
of, construction on, or access to any of the properties of the
Company, its Subsidiaries or Joint Ventures, and (iv) there is
no pending, or to the Company’s knowledge, any contemplated
proceeding or action that would affect the size of, use of,
improvements or construction on, or access to any of the properties
of the Company, its Subsidiaries or Joint Ventures. Except as
disclosed in the Registration Statement, General Disclosure Package
and Prospectus or as would not reasonably be expected to result in
a Material Adverse Effect, (i) the Company, its Subsidiaries
and Joint Ventures maintain title insurance with respect to the
real property reflected as owned therein in an amount consistent
with the title insurance maintained by similar companies in similar
businesses and (ii) the mortgages and deeds of trust
encumbering the properties and assets described or referred to
therein are not convertible into equity.
(xxi)
Investment Company Act . The Company is not required, and
upon the issuance and sale of the Securities as herein contemplated
and the application of the net proceeds therefrom as described in
the Registration Statement, General Disclosure Package and the
Prospectus will not be required, to register as an
“investment company” under the Investment Company Act
of 1940, as amended (the “1940 Act”).
(xxii)
Environmental Laws . Except as described in the Registration
Statement, General Disclosure Package and the Prospectus or except
as would not, singly or in the aggregate, reasonably be expected to
result in a Material Adverse Effect, (A) neither the Company
nor any of its subsidiaries or Joint Ventures is in violation of
any applicable federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law or any
judicial or administrative interpretation thereof, including any
applicable and legally binding judicial or administrative order,
consent, decree or judgment, relating to pollution or protection of
human health from Hazardous Materials (as hereinafter defined) or
protection of the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or
subsurface
11
strata) or
wildlife, including, without limitation, laws and regulations
relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products, asbestos-containing
materials or mold (collectively, “Hazardous Materials”)
or to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials
(collectively, “Environmental Laws”), (B) the
Company and its Subsidiaries and Joint Ventures have all permits,
authorizations and approvals required under any applicable
Environmental Laws necessary for the operation of their respective
business and are each in compliance with their requirements,
(C) the Company has not received any notice of, and has no
knowledge of, any pending or threatened administrative, regulatory
or judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Laws against the Company or any of
its subsidiaries or Joint Ventures and (D) to the knowledge of
the Company, there are no events or circumstances that would
reasonably be expected to form the basis of an order for clean-up
or remediation, or an action, suit or proceeding by any private
party or governmental body or agency, against or affecting the
Company or any of its subsidiaries or Joint Ventures relating to
Hazardous Materials or any Environmental Laws. Except as would not
reasonably be expected to result in a Material Adverse Effect, the
Company, its subsidiaries and Joint Ventures have conducted Phase I
environmental assessments on each of their currently owned
properties at the time such property was acquired. The Company, its
Subsidiaries and Joint Ventures currently conduct Phase I
environmental assessments with respect to each property to be
acquired as part of the ordinary course of business. The Company,
its Subsidiaries and Joint Ventures have not obtained any Phase I
environmental assessments that have indicated the existence of any
conditions that would reasonably be expected to result in a
Material Adverse Effect. None of the entities which prepared
appraisals of the properties or Phase I environmental assessment
reports with respect to the properties held by the Company, its
Subsidiaries or Joint Ventures was employed for such purpose on a
contingent basis or has any substantial interest in Company, its
Subsidiaries or Joint Ventures, and none of their directors,
officers or employees is connected with the Company, any Subsidiary
or Joint Venture as a promoter, selling agent, director, officer or
employee.
(xxiii)
Registration Rights . Except as disclosed in the
Registration Statement, the General Disclosure Package and the
Prospectus, there are no persons with registration or other similar
rights to have any equity or debt securities, including securities
that are convertible into or exchangeable for equity securities,
registered pursuant to the Registration Statement or otherwise
registered by the Company under the 1933 Act; and no person has a
right of participation, co-sale, first refusal or similar right
with respect to the sale of the Securities by the
Company.
(xxiv)
Accounting Controls and Disclosure Controls . The Company
maintains a system of internal accounting controls sufficient to
provide reasonable assurances that (1) transactions are executed in
accordance with management’s general or specific
authorization; (2) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP
and to maintain accountability for assets; (3) expenditures
are being made in accordance with management’s general or
specific authorization; (4) access to assets is permitted only
in accordance with management’s general or specific
authorization; and (5) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. Except
as described in the Registration Statement, General Disclosure
Package and the Prospectus, since the end of the Company’s
most recent audited fiscal year, there has been (I) to the
Company’s knowledge, no material weakness in the
Company’s internal control over financial reporting (whether
or not remediated) and (II) no change in the Company’s
internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the
Company’s internal control over financial reporting. The
Company does not, to its knowledge, currently have any significant
deficiencies in its internal control over financial reporting that
are reasonably likely to result in a material weakness.
12
The Company
employs disclosure controls and procedures that are designed to
ensure that information required to be disclosed by the Company in
the reports that it files or submits under the 1934 Act is
recorded, processed, summarized and reported, within the time
periods specified in the Commission’s rules and forms, and is
accumulated and communicated to the Company’s management,
including its principal executive officer or officers and principal
financial officer or officers, as appropriate, to allow timely
decisions regarding disclosure.
(xxv)
Compliance with the Sarbanes-Oxley Act and Related Party
Matters . There is and has been no failure on the part of the
Company or any of the Company’s directors or officers, in
their capacities as such, to comply in all material respects with
any provision of the Sarbanes-Oxley Act of 2002 and the rules and
regulations promulgated in connection therewith (the
“Sarbanes-Oxley Act”), including Section 402
related to loans and Sections 302 and 906 related to
certifications. No transaction has occurred between or among the
Company, its Subsidiaries and Joint Ventures, on one hand, and any
of their respective officers or directors or any affiliate or
affiliates of any such officer or director, on the other hand, that
is required to be described in the Registration Statement, General
Disclosure Package and Prospectus which is not so
described.
(xxvi) Pending
Proceedings and Examinations . The Registration Statement is
not the subject of a pending proceeding or examination under
Section 8(d) or 8(e) of the 1933 Act, and the Company is not the
subject of a pending proceeding under Section 8A of the 1933
Act in connection with the offering of the Securities.
(xxvii) Payment
of Taxes . All United States federal income tax returns of the
Company and its Subsidiaries and Joint Ventures required by law to
be filed have been filed and all taxes shown by such returns or
otherwise assessed, which are due and payable, have been paid,
except assessments against which appeals have been or will be
promptly taken and as to which adequate reserves have been
provided, and all such returns are true and correct in all material
respects. The Company and its Subsidiaries and Joint Ventures have
filed all other tax returns that are required to have been filed by
them pursuant to applicable foreign, state, local or other law
except insofar as the failure to file such returns would not
reasonably be expected to result in a Material Adverse Effect, have
paid all taxes due pursuant to such returns or pursuant to any
assessment received by the Company and its Subsidiaries, except for
such taxes, if any, as are being contested in good faith and as to
which adequate reserves have been provided, and all such returns
are true and correct in all material respects. The Company has made
appropriate provisions in the Company’s financial statements
that are incorporated by reference into the Registration Statement
(or otherwise described in the General Disclosure Package and the
Prospectus) in respect of all federal, state, local and foreign
income and franchise taxes for all current or prior periods as to
which the tax liability of the Company, its Subsidiaries and its
Joint Ventures has not been finally determined, except to the
extent of any inadequacy that would not reasonably be expected to
result in a Material Adverse Effect.
(xxviii)
Insurance . The Company and its Subsidiaries and Joint
Ventures carry or are entitled to the benefits of insurance in such
amounts and covering such risks as are generally deemed customary
for their business and all such insurance is in full force and
effect. The Company has no reason to believe that it will not be
able (A) to renew its existing insurance coverage as and when
such policies expire or (B) to obtain comparable coverage from
similar institutions as may be necessary or appropriate to conduct
its business as now conducted and at a cost that would not
reasonably be expected to result in a Material Adverse Effect.
Since January 1, 2004, neither of the Company nor any
Subsidiary or Joint Venture has been denied any insurance coverage
with respect to any material claim made by such party under
policies such party reasonably believed covered such
claim.
13
(xxix)
Statistical and Market-Related Data . Any statistical and
market-related data included in the Registration Statement, the
General Disclosure Package and the Prospectus are based on or
derived from sources that the Company believes to be reliable and
accurate, and, if required, the Company has obtained the written
consent to the use of such data from such sources.
(xxx) Foreign
Corrupt Practices Act . Neither the Company nor, to the
knowledge of the Company, any director, officer, agent, employee,
affiliate or other person acting on behalf of the Company or any of
its Subsidiaries or Joint Ventures is aware of or has taken any
action, directly or indirectly, that would result in a violation by
such persons of the Foreign Corrupt Practices Act of 1977, as
amended, and the rules and regulations thereunder (the
“FCPA”), including without limitation, making use of
the mails or any means or instrumentality of interstate commerce
corruptly in the furtherance of an offer, payment, promise to pay
or authorization of the payment of any money, or other property,
gift, promise to give, or authorization of the giving of anything
of value to any “foreign official” (as such term is
defined in the FCPA) or any foreign political party or official
thereof or any candidate for foreign political office, in
contravention of the FCPA and the Company and to the knowledge of
the Company, its Subsidiaries, Joint Ventures and affiliates have
conducted their businesses in compliance with the FCPA and have
instituted and maintain policies and procedures designed to ensure
and which are reasonably expected to continue to ensure, continued
compliance therewith.
(xxx) Money
Laundering Laws . The operations of the Company and its
Subsidiaries and, to the knowledge of the Company, Joint Ventures
are and have been conducted at all times in compliance with
applicable financial recordkeeping and reporting requirements of
the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all jurisdictions in
which such companies conduct business, the rules and regulations
thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental
agency within such jurisdictions (collectively, the “Money
Laundering Laws”) and no action, suit or proceeding by or
before any court or governmental agency, authority or body or any
arbitrator involving the Company with respect to the Money
Laundering Laws is pending or, to the knowledge of the Company,
threatened.
(xxxi) OFAC
. Neither the Company, its Subsidiaries or, to the knowledge of the
Company, its Joint Ventures, nor, to the knowledge of the Company,
any director, officer, agent, employee, affiliate or person acting
on behalf of the Company, its Subsidiaries or Joint Ventures is
currently subject to any U.S. sanctions administered by the Office
of Foreign Assets Control of the U.S. Treasury Department
(“OFAC”); and the Company will not directly or
indirectly use the proceeds of the offering, or lend, contribute or
otherwise make available such proceeds to any subsidiary, joint
venture partner or other person or entity, for the purpose of
financing the activities of any person currently subject to any
U.S. sanctions administered by OFAC.
(xxxii) No
Commissions . Neither the Company nor any of its
subsidiaries is a party to any contract, agreement or understanding
with any person (other than as contemplated by this Agreement) that
would give rise to a valid claim against the Company or any of its
subsidiaries or the Underwriters for a brokerage commission,
finder’s fee or like payment in connection with the offering
and sale of the Securities.
14
(xxxiii)
Actively-Traded Security . The Common Stock is an
“actively-traded security” exempted from the
requirements of Rule 101 of Regulation M under the 1934
Act by subsection (c)(1) of such rule.
(xxxiv) REIT
Status . Commencing with its taxable year ended
December 31, 1987, the Company has been organized and operated
in conformity with the requirements for qualification and taxation
as a real estate investment trust (“REIT”) under the
Internal Revenue Code of 1986, as amended, and the regulations and
published interpretations thereunder (collectively, the
“Code”), and the Company’s current and proposed
method of operations as described in the Registration Statement,
the General Disclosure Package and the Prospectus will enable it to
continue to meet the requirements for qualification and taxation as
a REIT under the Code for its taxable year ending December 31,
2009 and thereafter. No transaction or other event has occurred
that could reasonably be expected to cause the Company to not be
able to qualify as a REIT for its taxable year ending December 31,
2009 or future taxable years. The Company and each of its
subsidiaries have no intention of changing their operations or
engaging in activities that would cause the Company to fail to
qualify, or make economically undesirable the Company’s
continued qualification, as a REIT under the Code.
(xxxv)
Description of Organization and Method of Operations
. The Company’s conflicts of interest, operating
policies, investment guidelines and operating restrictions, if any,
described or incorporated by reference in the Registration
Statement, General Disclosure Package and Prospectus accurately
reflect, in all material respects, the information contained in
such guidelines and policies of the Company, and no material
deviation from such guidelines or policies is currently
contemplated.
(xxxvi)
Director Independence . Each of the currently serving
independent directors (or independent director nominees, once
appointed, if applicable) named in the Registration Statement,
General Disclosure Package and Prospectus satisfies the
independence standards established by the NYSE and, with respect to
members of the Company’s audit committee, the enhanced
independence standards contained in Rule 10A-3(b)(1)
promulgated by the Commission under the 1934 Act.
(xxxvii)
Dividends/Distributions . Except as disclosed in the
Registration Statement, General Disclosure Package and Prospectus,
or as would not reasonably be expected to result in a Material
Adverse Effect, no Subsidiary or Joint Venture is currently
prohibited, directly or indirectly, from paying any dividends or
distributions to the Company to the extent permitted by applicable
law, from making any other distribution on such Subsidiary’s
or Joint Venture’s issued and outstanding capital stock or
other equity interests, from repaying to the Company any loans or
advances to such Subsidiary or Joint Venture from the Company or
from transferring any of the property or assets of such Subsidiary
or Joint Venture to the Company.
(xxxviii)
Officer’s Certificates . Any certificate signed by any
officer of the Company or any of its subsidiaries delivered to the
Representatives or to counsel for the Underwriters shall be deemed
a representation and warranty by the Company to each Underwriter as
to the matters covered thereby.
SECTION 2. Sale
and Delivery to Underwriters; Closing .
(a) Initial
Securities . On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to each Underwriter, severally
and not jointly, and each Underwriter, severally and not jointly,
agrees to purchase from the
15
Company, at the
price per share set forth in Schedule F, the number of Initial
Securities set forth in Schedule A opposite the name of such
Underwriter, plus any additional number of Initial Securities which
such Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof, subject, in each case, to
such adjustments among the Underwriters as the Representatives in
their sole discretion shall make to eliminate any sales or
purchases of fractional securities.
(b)
Option Securities . In addition, on the basis of the
representations and warranties herein contained and subject to the
terms and conditions herein set forth, the Company hereby grants an
option to the Underwriters, severally and not jointly, to purchase
up to an additional 6,000,000 shares of Common Stock at the price
per share set forth in Schedule F, less an amount per share
equal to any dividends or distributions declared by the Company and
payable on the Initial Securities but not payable on the Option
Securities. The option hereby granted will expire 30 days
after the date hereof and may be exercised in whole or in part from
time to time only for the purpose of covering overallotments which
may be made in connection with the offering and distribution of the
Initial Securities upon notice by the Representatives to the
Company setting forth the number of Option Securities as to which
the several Underwriters are then exercising the option and the
time and date of payment and delivery for such Option Securities.
Any such time and date of delivery (a “Date of
Delivery”) shall be determined by the Representatives, but
shall not be earlier than two nor later than seven full business
days after delivery of such notice of the exercise of said option,
and in no event prior to the Closing Time, as hereinafter defined.
If the option is exercised as to all or any portion of the Option
Securities, each of the Underwriters, acting severally and not
jointly, will purchase that proportion of the total number of
Option Securities then being purchased which the number of Initial
Securities set forth in Schedule A opposite the name of such
Underwriter bears to the total number of Initial Securities,
subject in each case to such adjustments as the Representatives in
their discretion shall make to eliminate any sales or purchases of
fractional shares.
(c)
Payment . The Securities shall be delivered by the Company
to the Representatives, including, at the option of the
Representatives, through the facilities of DTC for the account of
the Representatives, against payment by the Representatives of the
purchase price therefor by wire transfer of immediately available
funds to a bank account designated by the Company. Each closing of
the transactions contemplated hereby shall occur at the offices of
Hunton & Williams LLP, 600 Peachtree Street, NE,
Suite 4100, Atlanta, GA 30308, or at such other place as shall
be agreed upon by the Representatives and the Company, at
10:30 A.M. (Eastern time) on the third (fourth, if the pricing
occurs after 4:30 P.M. (Eastern time) on any given day) business
day after the date hereof (unless postponed in accordance with the
provisions of Section 10), or such other time not later than
ten business days after such date as shall be agreed upon by the
Representatives and the Company (such time and date of payment and
delivery being herein called “Closing
Time”).
In addition, in
the event that any or all of the Option Securities are purchased by
the Underwriters, such closing transactions shall be made at the
above-mentioned offices, or at such other place as shall be agreed
upon by the Representatives and the Company, on each Date of
Delivery as specified in the notice from the Representatives to the
Company.
Payment shall be
made to the Company by wire transfer of immediately available funds
to a bank account designated by the Company, against delivery to
the Representatives for the respective accounts of the Underwriters
of the Securities to be purchased by them. It is understood that
each Underwriter has authorized the Representatives, for its
account, to accept delivery of, receipt for, and make payment of
the purchase price for, the Initial Securities and the Option
Securities, if any, which it has agreed to purchase. Each of
Merrill Lynch and Morgan Stanley, individually and not as
representative of the Underwriters, may (but shall not be obligated
to) make payment of the purchase price for the Initial Securities
or the Option Securities, if any, to be purchased by any
Underwriter whose funds have not been received by the Closing Time
or the relevant Date of Delivery, as the case may be, but such
payment shall not relieve such Underwriter from its obligations
hereunder.
16
(d)
Denominations; Registration . Certificates for the Initial
Securities and the Option Securities, if any, shall be in such
denominations and registered in such names as the Representatives
may request in writing at least one full business day before the
Closing Time or the relevant Date of Delivery, as the case may be.
The certificates for the Initial Securities and the Option
Securities, if any, will be made available for examination and
packaging by the Representatives in The City of New York not later
than 10:00 A.M. (Eastern time) on the business day prior to
the Closing Time or the relevant Date of Delivery, as the case may
be.
SECTION 3.
Covenants of the Company . The Company covenants and, as
applicable, represents and warrants, with each Underwriter as
follows:
(a) Compliance
with Securities Regulations and Commission Requests; Payment of
Filing Fees . The Company, subject to Section 3(b), will
comply with the requirements of Rule 430B and will notify the
Representatives immediately, and confirm the notice in writing,
(i) when any post-effective amendment to the Registration
Statement or new registration statement relating to the Securities
shall become effective, or any supplement to the Prospectus or any
amended Prospectus shall have been filed, (ii) of the receipt
of any comments from the Commission relating to the Securities,
(iii) of any request by the Commission for any amendment to
the Registration Statement, the filing of a new registration
statement relating to the Securities or any amendment or supplement
to the Prospectus or any document incorporated by reference therein
or otherwise deemed to be a part thereof or for additional
information relating to the Securities, (iv) of the issuance
by the Commission of any stop order suspending the effectiveness of
the Registration Statement or such new registration statement
relating to the Securities or of any order preventing or suspending
the use of any preliminary prospectus, or of the suspension of the
qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes or of any examination pursuant
to Section 8(e) of the 1933 Act concerning the Registration
Statement, (v) if the Company becomes the subject of a
proceeding under Section 8A of the 1933 Act in connection with
the offering of the Securities or (vi) upon the happening of
any similar event. The Company will effect the filings required
under Rule 424(b), in the manner and within the time period
required by Rule 424(b) (without reliance on Rule 424(b)(8)),
and will take such steps as it deems necessary to ascertain
promptly whether the form of prospectus transmitted for filing
under Rule 424(b) was received for filing by the Commission and, in
the event that it was not, it will promptly file such prospectus.
The Company will make every commercially reasonable effort to
prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible
moment.
(b) Filing of
Amendments and Exchange Act Documents . During the period when
the Prospectus is required by the 1933 Act and the 1933 Act
Regulations to be delivered in connection with the sale of the
Securities, the Company will give the Representatives notice of its
intention to file or prepare any amendment to the Registration
Statement or new registration statement relating to the Securities
or any amendment, supplement or revision to either any preliminary
prospectus (including any prospectus included in the Original
Registration Statement or amendment thereto at the time it became
effective) or to the Prospectus, whether pursuant to the 1933 Act,
the 1934 Act or otherwise, and the Company will furnish the
Representatives with copies of any such documents a reasonable
amount of time prior to such proposed filing or use, as the case
may be, and will not file or use any such document to which the
Representatives or counsel for the Underwriters shall object. The
Company has given the Representatives notice of
17
any filings
made pursuant to the 1934 Act or 1934 Act Regulations within 48
hours prior to the execution of this Agreement; the Company will
give the Representatives notice of its intention to make any such
filing from the execution of this Agreement 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 and will
not file or use any such document to which the Representatives or
counsel for the Underwriters shall reasonably object in
writing.
(c) Delivery of
Registration Statements . The Company has furnished or will
deliver to the Representatives and counsel for the Underwriters,
upon request, without charge, four signed copies of the Original
Registration Statement and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and
documents incorporated or deemed to be incorporated by reference
therein or otherwise deemed to be a part thereof if not filed with
the Commission pursuant to EDGAR) and signed copies of all consents
and certificates of experts, and will also deliver to the
Representatives, upon request, without charge, a conformed copy of
the Original Registration Statement and of each amendment thereto
(without exhibits) for each of the Underwriters. The copies of the
Original Registration Statement and each amendment thereto
furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(d) Delivery of
Prospectuses . The Company has delivered to each Underwriter,
without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Company hereby
consents to the use of such copies for purposes permitted by the
1933 Act. The Company will furnish to each Underwriter, without
charge, during the period when the Prospectus is required to be
delivered under the 1933 Act and the 1933 Act Regulations, such
number of copies of the Prospectus (as amended or supplemented) as
such Underwriter may reasonably request. The Prospectus and any
amendments or supplements thereto furnished to the Underwriters
will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
(e) Continued
Compliance with Securities Laws . The Company will comply with
the 1933 Act and the 1933 Act Regulations and the 1934 Act and the
1934 Act Regulations so as to permit the completion of the
distribution of the Securities as contemplated in this Agreement
and in the Prospectus. If at any time during the period when the
Prospectus is required by the 1933 Act or 1933 Act Regulations to
be delivered in connection with sales of the Securities, any event
shall occur or condition shall exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters or for
the Company, to amend the Registration Statement or amend or
supplement the Prospectus in order that the Prospectus will not
include any untrue statements of a material fact or omit to state a
material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time
it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration
Statement or to file a new registration statement relating to the
Securities, or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly prepare and file with the
Commission, subject to Section 3(b), such amendment,
supplement or new registration statement as may be necessary to
correct such statement or omission or to comply with such
requirements, the Company will use its best efforts to have such
amendment or new registration statement declared effective as soon
as practicable (if it is not an automatic shelf registration
statement with respect to the Securities) and the Company will
furnish to the Underwriters such number of copies of such
amendment, supplement or new registration statement as the
Underwriters may reasonably request. If at any time following
issuance of an Issuer Free Writing Prospectus through the Closing
Time or the
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relevant Date
of Delivery there occurred or occurs an event or development as a
result of which, in the opinion of counsel for the Underwriters or
for the Company, such Issuer Free Writing Prospectus conflicted or
would conflict with the information contained in the Registration
Statement, General Disclosure Package or Prospectus or included or
would include an untrue statement of a material fact or omitted or
would omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances prevailing at
that subsequent time, not misleading, the Company will promptly
notify the Representatives and will promptly amend or supplement,
at its own expense, such Issuer Free Writing Prospectus to
eliminate or correct such conflict, untrue statement or omission.
The foregoing does not apply to statements in or omissions from any
Issuer Free Writing Prospectus containing and with respect to the
Underwriter Information.
(f) Blue Sky
Qualifications . The Company will use its commercially
reasonable efforts, in cooperation with the Underwriters, to
qualify the Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions (domestic or
foreign) as the Representatives may designate and to maintain such
qualifications in effect for a period of not less than one year
from the date hereof; provided, however, that the Company shall not
be obligated to file any general consent to service of process or
to qualify as a foreign corporation or as a dealer in securities in
any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction
in which it is not otherwise so subject.
(g)
Rule 158 . The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make
generally available to its securityholders as soon as practicable
an earnings statement for the purposes of, and to provide to the
Underwriters the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(h) Use of
Proceeds . The Company will use the net proceeds received by it
from the sale of the Securities in the manner specified in the
General Disclosure Package and Prospectus under “Use of
Proceeds.”
(i) Listing
. The Company will use its best efforts to effect the listing of
the Securities on the NYSE.
(j) Restriction
on Sale of Securities . During a period of 60 days from
the date of the Prospectus, the Company will not, without the prior
written consent of the Representatives, (i) directly or
indirectly, offer, pledge, sell, contract to sell, sell any option
or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase or otherwise
transfer or dispose of any share of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock or
file, amend or supplement any registration statement under the 1933
Act with respect to effecting any of the foregoing (other than with
respect to the Securities) or (ii) enter into any swap or any
other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership
of the Common Stock, whether any such swap or transaction described
in clause (i) or (ii) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise. The
foregoing sentence shall not apply to (A) the Securities to be
sold hereunder, (B) any shares of Common Stock issued by the
Company upon the exercise of an option or warrant or the conversion
of a security outstanding on the date hereof and referred to in the
Prospectus, (C) any shares of Common Stock issued or options
to purchase Common Stock granted pursuant to existing employee
benefit plans of the Company referred to in the Prospectus or
(D) any shares of Common Stock issued by the Company pursuant
to the dividends or distributions payable to holders of the Common
Stock generally consistent with expectations disclosed by the
Company
19
in the
Registration Statement, Prospectus and General Disclosure Package
or (E) registration statements on Form S-8. Notwithstanding
the foregoing, if (1) during the last 17 days of the
60-day restricted period the Company issues an earnings release or
material news or a material event relating to the Company occurs or
(2) prior to the expiration of the 60-day restricted period,
the Company announces that it will release earnings results or
becomes aware that material news or a material event will occur
during the 16-day period beginning on the last day of the 60-day
restricted period, the restrictions imposed in this clause
(j) shall continue to apply until the expiration of the 18-day
period beginning on the issuance of the earnings release or the
occurrence of the material news or material event.
(k) Reporting
Requirements . During the period when the Prospectus is
required to be delivered under the 1933 Act and 1933 Act
Regulations in connection with the sale of the Securities, the
Company, will file all documents required to be filed with the
Commission pursuant to the 1934 Act within the time periods
required by the 1934 Act and the 1934 Act Regulations.
(l) Issuer Free
Writing Prospectuses. The Company represents and agrees that,
unless it obtains the prior consent of the Representatives, and
each Underwriter represents and agrees that, unless it obtains the
prior consent of the Company and the Representatives, it has not
made and will not make any offer relating to the Securities that
would constitute an “issuer free writing prospectus,”
as defined in Rule 433, or that would otherwise constitute a
“free writing prospectus,” as defined in Rule 405,
required to be filed with the Commission. Any such free writing
prospectus consented to by the Representatives or by the Company
and the Representatives, as the case may be, is hereinafter
referred to as a “Permitted Free Writing Prospectus.”
The Company represents that it has treated or agrees that it will
treat each Permitted Free Writing Prospectus as an “issuer
free writing prospectus,” as defined in Rule 433, and
has complied and will comply with the requirements of Rule 433
applicable to any Permitted Free Writing Prospectus, including
timely filing with the Commission where required, legending and
record keeping.
(m) Share Price
Manipulation. The Company agrees that it will not, and will
cause its respective officers and directors and their respective
subsidiaries and, to the extent practical, joint ventures, not to,
take, directly or indirectly, any action, in violation of any
applicable law, designed to, or that might be reasonably expected
to, cause or result in stabilization or manipulation of the price
of the Securities to facilitate the sale or resale of the
Securities, provided that the Company may bid for and purchase its
Common Stock in accordance with Rule 10b-18 under the 1934
Act.
(n) REIT
Qualification. The Company will use its best efforts to
continue to meet the requirements for qualification and taxation as
a REIT under the Code, subject to any future determination by the
Company’s board of directors that it is no longer in the
Company’s best interests to qualify as a REIT.
(o) Investment
Company Act. The Company will use its best efforts to conduct
its affairs and the affairs of its subsidiaries in such a manner so
as to ensure that neither the Company nor any of its subsidiaries
will be an “investment company” (as defined in the 1940
Act) or an entity “controlled” by an investment company
that is required to be registered under the 1940 Act, subject to
any future determination by the Company’s board of directors
that it is no longer in the Company’s best interests to
conduct its affairs and the affairs of its subsidiaries in such a
manner.
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(p)
Undertakings . The Company will comply with all of the
provisions of any undertakings in the Registration
Statement
(q) Transfer
Agent . The Company has engaged and will maintain, at its sole
expense, a registrar and transfer agent for the
Securities
(r) Liability
Insurance . The Company will maintain, as appropriate,
directors and officers liability insurance in an amount deemed
advisable by the Company in its reasonable discretion subject to
any future determination by the Company’s board of directors
that it is no longer in the Company’s best interests to
maintain such liability insurance.
SECTION 4.
Payment of Expenses . (a) Expenses . The Company will
pay all expenses incident to the performance of its obligations
under this Agreement, including (i) the preparation, printing
and filing of the Registration Statement (including financial
statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters
and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Securities,
(iii) the preparation, issuance and delivery of the
certificates for the Securities to the Underwriters, including any
stock or other transfer taxes and any stamp or other duties payable
upon the sale, issuance or delivery of the Securities to the
Underwriters, (iv) the fees and disbursements of the
Company’s counsel, accountants and other advisors,
(v) the qualification of the Securities under securities laws
in accordance with the provisions of Section 3(f) hereof, including
filing fees and the reasonable fees and disbursements of counsel
for the Underwriters in connection therewith and in connection with
the preparation of the Blue Sky Survey and any supplement thereto,
(vi) the printing and delivery to the Underwriters of copies
of each preliminary prospectus, any Permitted Free Writing
Prospectus, and of the Prospectus and any amendments or supplements
thereto and any costs associated with electronic delivery of any of
the foregoing by the Underwriters to investors, (vii) the
preparation, printing and delivery to the Underwriters of copies of
the Blue Sky Survey and any supplement thereto, (viii) the
fees and expenses of any transfer agent or registrar for the
Securities, (ix) the costs and expenses of the Company
relating to investor presentations on any “road show”
undertaken in connection with the marketing of the Securities,
including without limitation, expenses associated with the
production of road show slides and graphics, fees and expenses of
any consultants engaged in connection with the road show
presentations, travel and lodging expenses of the representatives
and officers of the Company and any such consultants, and 50% of
the cost of aircraft and other transportation chartered in
connection with the road show, (x) all costs and expenses of
the Underwriters, including the reasonable fees and disbursements
of counsel for the Underwriters, in connection with matters related
to the Reserved Securities which are designated by the Company for
sale to Invitees and (xi) the fees and expenses incurred in
connection with the listing of the Securities on the NYSE. Except
as provided in this Section 4, Section 6 and
Section 7 and 9(b), or otherwise expressly set forth herein,
the Underwriters shall pay their own expenses, including the fees
and disbursements of their counsel.
(b)
Expenses Upon Termination of Agreement . If this Agreement
is terminated by the Representatives in accordance with the
provisions of Section 5 or Section 9(a)(i) hereof, the
Company shall reimburse the Underwriters for all of their
reasonable and actual out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the
Underwriters.
SECTION 5.
Conditions of Underwriters’ Obligations . The
obligations of the several Underwriters hereunder are subject to
the accuracy of the representations and warranties of the Company
contained herein or in certificates of any officer of the Company
or any Subsidiary of the Company delivered pursuant to the
provisions hereof, to the performance by the Company of its
covenants and other obligations hereunder, and to the following
further conditions:
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(a)
Effectiveness of Registration Statement; Filing of Prospectus;
Payment of Filing Fee . The Registration Statement has become
effective and at Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued
under the 1933 Act or proceedings therefor initiated or threatened
by the Commission, and any request on the part of the Commission
for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters. The
Prospectus containing the Rule 430B Information shall have
been filed with the Commission in the manner and within the time
period required by Rule 424(b) without reliance on
Rule 424(b)(8) (or a post-effective amendment providing such
information shall have been filed and become effective in
accordance with the requirements of Rule 430B). The Company
shall have paid the required Commission filing fees relating to the
Securities within the time period required by the 1933 Act
Regulations.
(b)
Opinion of Counsel and Tax Advisor for Company . At Closing
Time, the Representatives shall have received the favorable
opinions, dated as of Closing Time, of (i) King & Spalding
LLP, counsel for the Company, and (ii) Deloitte Tax LLP, tax
advisor to the Company, each in form and substance reasonably
satisfactory to counsel for the Underwriters, together with signed
or reproduced copies of such letters for each of the other
Underwriters to the effect set forth in Exhibit A and
Exhibit B hereto, respectively, and to such further
effect as counsel to the Underwriters may reasonably
request.
(c)
Opinion of Counsel for Underwriters . At Closing Time, the
Representatives shall have received the favorable opinion, dated as
of Closing Time, of Hunton & Williams LLP, counsel for the
Underwriters, together with signed or reproduced copies of such
letter for each of the other Underwriters in a form and substance
satisfactory to the Representatives.
(d)
Officers’ Certificate . At Closing Time, there shall
not have been, since the date hereof, since the Applicable Time or
since the respective dates as of which information is given in the
Prospectus or the General Disclosure Package, in the reasonable
judgment of the Representatives, any Material Adverse Effect and
the Representatives shall have received a certificate of the
President or a Vice President of the Company and of the chief
financial or chief accounting officer of the Company, in their
respective capacities as such officers, dated as of Closing Time,
to the effect that (i) there has been no such Material Adverse
Effect, (ii) the representations and warranties contained in
this Agreement are true and correct as of Closing Time with the
same force and effect as though expressly made at and as of Closing
Time (except that to the extent that such representations or
warranties speak as of another date, in which case such
representations and warranties shall be true and correct as of such
other date), (iii) the Company has complied with all
agreements hereunder and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to Closing Time, and
(iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or, to their knowledge,
contemplated by the Commission.
(e)
Accountant’s Comfort Letter . At the time of the
execution of this Agreement, the Representatives shall have
received from Deloitte & Touche LLP a letter dated such date,
in form and substance reasonably satisfactory to the
Representatives, together with signed or reproduced copies of such
letter for each of the other Underwriters containing statements and
information of the type ordinarily included in accountants’
“comfort letters” to underwriters with respect to the
financial statements and certain financial information contained in
the Registration Statement, General Disclosure Package and the
Prospectus.
(f)
Bring-down Comfort Letter . At Closing Time, the
Representatives shall have received from Deloitte & Touche LLP
a letter, dated as of Closing Time, to the effect that they
reaffirm the statements made in the letter furnished pursuant to
subsection (e) of this Section, except that the specified date
referred to therein for the carrying out of procedures shall be a
date not more than three business days prior to Closing
Time.
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(g)
Approval of Listing . At Closing Time, the Securities shall
have been approved for listing on the NYSE, subject only to
official notice of issuance.
(h)
Lock-up Agreements . At the date of this Agreement, the
Representatives shall have received an agreement substantially in
the form of Exhibit C hereto signed by the persons
listed on Schedule G hereto.
(i)
Conditions to Purchase of Option Securities . In the event
that the Underwriters exercise their option provided in Section
2(b) hereof to purchase all or any portion of the Option
Securities, the representations and warranties of the Company
contained herein and the statements in any certificates furnished
by the Company or any subsidiary of the Company hereunder shall be
true and correct as of each Date of Delivery and, at the relevant
Date of Delivery, the Representatives shall have
received:
(i)
Officers’ Certificate . A certificate, dated such Date
of Delivery, of the President or a Vice President of the Company
and of the chief financial or chief accounting officer of the
Company, in their respective capacities as such
officers,
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