EXHIBIT 1
EASTGROUP PROPERTIES, INC.
1,050,000 Shares*
Common Stock
($.0001 par value)
Underwriting Agreement
New York, New York
April 24, 2008
MERRILL LYNCH,
PIERCE, FENNER & SMITH INCORPORATED
4 World Financial Center
New York, New York 10080
Ladies and Gentlemen:
EastGroup Properties,
Inc., a corporation organized under the laws of
Maryland (the "Company"), proposes to sell to Merrill Lynch,
Pierce, Fenner &
Smith Incorporated
("you" or the
"Underwriter"),
1,050,000 shares of Common
Stock, $.0001 par
value ("Common
Stock") of the
Company (said shares to be
issued and sold by the
Company being hereinafter called the "Underwritten
Securities"). The Company also proposes to grant to the Underwriter
an option to
purchase up
to 157,500 additional shares of Common Stock to cover
over-allotments (the "Option Securities"; the Option Securities,
together with
the Underwritten
Securities, being
hereinafter called the
"Shares"). Certain
terms used herein are defined in Section 19 hereof.
1.
Representations and Warranties. The Company represents and
warrants to,
and agrees with the Underwriter that:
(a)
The Company has filed with the Securities and Exchange Commission (the
"Commission") an
automatic shelf registration statement (Registration No.
333-134959) on Form
S-3 for the registration of equity securities of the
Company, including the
Shares, which has been carefully prepared by the Company
pursuant to and in conformity with the requirements of the Securities Act of
1933, as amended (the
"Act"), and the rules
and regulations
thereunder
(the
"1933 Act Rules and Regulations") of the Commission. Such
registration statement
became effective
upon filing under Rule 462(e) of the 1933 Act Rules and
Regulations. The
Company meets the
requirements for use
of
---------------------------
*
Plus an option to purchase from EastGroup Properties, Inc., up to
157,500
additional shares to cover over-allotments.
<PAGE>
Form S-3 under the Act. Copies of such registration statement, including any
amendments
thereto, each
related preliminary prospectus (meeting the
requirements of Rule
430, Rule 430A or Rule 430B) contained therein, and the
exhibits, financial
statements
and schedules thereto have heretofore been
delivered by the
Company to you.
A final prospectus containing information
permitted to be omitted at the time of effectiveness by Rule 430A or Rule 430B
will be filed promptly
by the Company with the Commission in accordance with
Rule 424(b) of the 1933 Act Rules and Regulations. The term
"Prospectus" as used
herein means
the base prospectus constituting a part of the Registration
Statement and included in the Registration Statement at the Effective Date,
as
supplemented by each
prospectus
supplement
relating to the offering of the
Shares, including any
such prospectus
supplement filed pursuant to Rule 424(b)
of the 1933
Act Rules and Regulations (the "Prospectus Supplement") and
including any
information
and documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act. For purposes of this Agreement,
the words "amend," "amendment," "amended," "supplement" or "supplemented"
with
respect to the Registration Statement or the Prospectus shall mean
amendments or
supplements to the Registration Statement or the Prospectus, as the
case may be;
as well as documents
filed after the date
of this Agreement
and prior to the
completion of the
distribution
of the Shares and
incorporated
by reference
therein as described above.
(b)
Neither the Commission
nor any state or other
jurisdiction
or other
regulatory body has
issued, and neither
is, to the knowledge
of the Company,
threatening to issue, any stop order under the Act or other order
suspending the
effectiveness of the
Registration
Statement (as amended
or supplemented)
or
preventing or
suspending
the use of the Prospectus or suspending the
qualification or
registration
of the Shares for offering or sale in any
jurisdiction nor
instituted or, to the knowledge of the Company, threatened to
institute proceedings
for any such purpose. The Registration Statement and the
Prospectus and any amendments or supplements thereto contain or
will contain, as
the case may be, all statements which are required to be stated
therein by, and
in all material
respects conform or
will conform,
as the case may be, to
the
requirements of, the
Act and the 1933 Act Rules and Regulations. Neither the
Registration Statement nor any amendment thereto, as of the
applicable effective
date, contains or will
contain, as the case
may be, any untrue
statement of a
material fact or omits
or will omit to state any material fact required to be
stated therein or necessary to make the statements therein, not misleading and
neither the Prospectus nor any supplement thereto contains or will contain,
as
the case may be, any untrue statement of a material
fact or omits or will
omit
to state any material
fact required to be
stated therein or
necessary to make
the statements
therein, in the light of the circumstances under which they
were
made, not
misleading;
provided,
however,
that
the Company makes no
representation or
warranty as to
information contained
in or omitted from the
Prospectus in
reliance upon, and in conformity with, written information
relating to the
Underwriter
furnished to the Company by the Underwriter
expressly for use in the preparation thereof. There is no contract or
document
required to be described in the Registration Statement or Prospectus or to be
filed as an exhibit to the Registration Statement which is not described or
filed as
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<PAGE>
required. The
documents incorporated by reference in the Prospectus pursuant
to
Item 12 of Form S-3
under the Act, at the time they were filed with the
Commission, complied
in all material
respects with the requirements of the
Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and the rules
and regulations
adopted by the
Commission thereunder
(the "1934 Act Rules and
Regulations"). Any
future documents
incorporated by
reference so filed,
when
they are filed, will
comply in all material
respects with the
requirements of
the Exchange Act and the 1934 Act Rules and Regulations; no such incorporated
document contained or
will contain any 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, when read together and with
the
other information in
the Prospectus,
at the time the
Registration
Statement
became effective and at the Closing Date (as defined in Section 3
herein), each
such incorporated
document did not or
will not, as the case may be, 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.
(c)
This Agreement has been duly authorized, executed and delivered by the
Company and
constitutes a valid and legally binding obligation of the Company
enforceable against
the Company in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, fraudulent
conveyance,
reorganization,
moratorium and other
similar laws relating to or affecting
creditors'
rights generally
and by general principles of equity (the
"Exceptions").
(d)
The Company
and its subsidiaries have been duly organized and are
validly existing as corporations, partnerships or limited liability
companies,
as the case may be, in
good standing
under the laws of the states or other
jurisdictions in which they are incorporated or formed, as the case
may be, with
full power and authority (corporate and other) to own, lease and
operate their
properties and conduct their businesses as described in the
Prospectus and, with
respect to the
Company, to execute
and deliver,
and perform the Company's
obligations under,
this Agreement;
the Company and its
subsidiaries are
duly
qualified to do business as foreign corporations in good standing
(except as set
forth in Schedule
1(d)) in each
state or other
jurisdiction
in which their
ownership or leasing of property or conduct of business
legally requires such
qualification, except
where the failure to be so qualified, individually or in
the aggregate,
would not have a
Material Adverse
Effect. The term "Material
Adverse Effect"
as used herein means any material adverse effect on the
condition (financial
or other),
net worth, business, affairs, management,
prospects,
results of
operations
or cash flow of the Company and its
subsidiaries, taken as a whole.
(e)
Neither the Company nor any of its subsidiaries has sustained since
the
date of the latest audited financial statements included or incorporated by
reference in the Prospectus any material loss or interference
with its business
from fire,
explosion,
flood or other
calamity, whether or not covered by
insurance, or from any
labor dispute or court or governmental action, order or
decree. Other than as
set forth in the
Disclosure
3
<PAGE>
Package and
the Prospectus and, since the respective dates as of which
information is given
in the Prospectus,
there has not been any
change in the
capital stock,
partnership interests or membership or similar interests, as
the
case may be, or long-term debt of the Company or any of its
subsidiaries or
any
material adverse
change, or any
development involving
a prospective
material
adverse change,
in or affecting
the general
affairs, management, financial
position,
stockholders' equity
or results of operations of the Company and its
subsidiaries taken as
a whole, otherwise
than as set forth in
the Disclosure
Package and the Prospectus.
(f)
The issuance and sale of the Underwritten Securities and the
execution,
delivery and performance by the Company of this Agreement,
and the
consummation
of the transactions herein contemplated, will not conflict with or result
in a
breach or violation
of any of the terms or
provisions
of, or constitute a
default under,
or result in the
creation or imposition of any lien, charge or
encumbrance upon
any properties or assets of the Company or any of its
subsidiaries under,
any indenture,
mortgage, deed of
trust, loan agreement or
other agreement or instrument to which the Company or any of its
subsidiaries is
a party or by which the Company or any of its subsidiaries is bound or to
which
any of the properties
or assets of the
Company or any of its
subsidiaries is
subject, except to
such extent as,
individually or in the aggregate, does not
have a Material Adverse Effect, nor will such action result in any
violation of
the provisions of the Company's Charter, Articles Supplementary or
bylaws or any
statute, rule,
regulation or other
law, or any order or judgment, of any court
or governmental agency
or body having
jurisdiction over the
Company or any of
its subsidiaries
or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any
such court or
governmental agency
or body is required for the execution, delivery and
performance of this
Agreement,
the issuance and sale of the Shares or the
consummation of the transactions contemplated hereby, except such
as have been,
or will be prior
to the Closing Date, obtained under the Act or as may be
required by the
Financial Industry
Regulatory
Authority ("FINRA") and such
consents, approvals,
authorizations,
registrations or qualifications as may be
required under state securities or blue sky laws in connection with
the purchase
of the Shares by the investor.
(g)
As of December 31,
2007, the Company has
duly and validly
authorized
capital stock as set forth in the Company's Annual Report on Form 10-K for
the
year ended December
31, 2007; all outstanding shares of Common Stock of the
Company and the Shares conform, or when issued will conform, to
the description
thereof in the
Disclosure Package and
the Prospectus
and have been, or,
when
issued and paid for in the manner described herein will be, duly authorized,
validly issued, fully paid and non-assessable; and the issuance of
the Shares to
be purchased from the
Company hereunder is
not subject to
preemptive or other
similar rights, or any
restriction upon the voting or transfer thereof pursuant
to applicable law or the Company's Charter, Articles Supplementary, bylaws or
governing documents
or any agreement to which the Company or any of its
subsidiaries is a
party or by which any
of them may be bound.
All corporate
action required to be taken by the Company for the authorization, issuance and
sale of the
4
<PAGE>
Shares has been duly and validly taken. Except as disclosed in the
Disclosure
Package and the
Prospectus, there are
no outstanding
subscriptions,
rights,
warrants, options, calls, convertible securities, commitments of sale or rights
related to or
entitling any person
to purchase
or otherwise to acquire any
shares of, or any security convertible into or exchangeable
or exercisable for,
the capital
stock of, or other ownership interest in, the Company. The
outstanding shares of
capital stock,
partnership
interests or
membership or
similar interests, as
the case may be, of the Company's subsidiaries have been
duly authorized and validly issued, are fully paid and non-assessable and are
owned by the Company free and clear of any mortgage, pledge, lien, encumbrance,
charge or adverse claim and are not the subject of any agreement or
understanding with any person and were not issued in violation of
any preemptive
or similar rights; and there are no outstanding subscriptions,
rights, warrants,
options, calls,
convertible
securities,
commitments
of sale or
instruments
related to or entitling any person to purchase or
otherwise acquire any
shares
of, or any security
convertible into or
exchangeable or
exercisable for,
the
capital stock of, or other ownership interest in any of the
subsidiaries.
(h)
The statements set
forth in the Disclosure Package and the Prospectus
describing the Shares
insofar as they purport to describe the provisions of the
laws and documents referred to therein, are accurate, complete and
fair.
(i)
Each of the Company and its subsidiaries is in possession of and is
operating in compliance with all franchises, grants, authorizations, licenses,
certificates, permits,
easements,
consents, orders and approvals
("Permits")
from all state,
federal, foreign
and other regulatory authorities, and has
satisfied the requirements imposed by regulatory bodies,
administrative agencies
or other governmental bodies, agencies or officials,
that are required for
the
Company and its subsidiaries lawfully to own, lease and operate
their properties
and conduct their
businesses
as described in the
Disclosure
Package and the
Prospectus, and, each
of the Company and its
subsidiaries is
conducting
its
business in
compliance
with all of the laws,
rules and regulations of each
jurisdiction in
which it conducts its business, in each case with such
exceptions,
individually or in the
aggregate,
as would not have a Material
Adverse Effect; each
of the Company and its subsidiaries has filed all notices,
reports, documents or
other information
("Notices") required to be filed under
applicable laws,
rules and regulations, in each case, with such
exceptions,
individually or in the aggregate, as would not have a Material
Adverse Effect;
and, except as otherwise specifically described in the Disclosure
Package and
the Prospectus, neither the Company nor any of its subsidiaries has
received any
notification from any court or governmental body, authority or
agency, relating
to the revocation or
modification of any such Permit or, to the effect that any
additional
authorization,
approval, order,
consent, license, certificate,
permit,
registration or
qualification
("Approvals")
from such regulatory
authority is needed to be obtained by any of them, in any case
where it could be
reasonably expected
that obtaining such Approvals or the failure to obtain such
Approvals,
individually or in the
aggregate,
would have a
Material Adverse
Effect.
5
<PAGE>
(j)
The Company and its
subsidiaries
have filed all
necessary federal,
state and foreign
income and franchise
tax returns and paid all taxes shown as
due thereon;
all such tax returns
are complete and correct in all material
respects; all tax
liabilities are
adequately provided
for on the books of the
Company and its subsidiaries except to such extent as would not
have a Material
Adverse Effect;
the Company and its
subsidiaries
have made all
necessary tax
payments (including
payroll and/or withholding taxes) and are current and
up-to-date; and the
Company and its
subsidiaries have no
knowledge of any tax
proceeding or
action pending or threatened against the Company or its
subsidiaries which,
individually
or in the aggregate, might have a Material
Adverse Effect. The Company has made adequate charges, accruals and reserves in
the applicable
financial statements referred to in Section 1(t) hereof in
respect of all federal, state, local and foreign income
and franchise taxes for
all periods
as to which the tax liability of the Company or any of the
subsidiaries has not been finally determined.
(k)
The Company and its subsidiaries have good and marketable title in
fee
simple to all
items of real
property and good and marketable title to all
personal property
owned by them,
in each case
free and clear of all liens,
encumbrances,
restrictions and
defects except such as are described in the
Disclosure Package and
the Prospectus or do not materially affect the value of
such property and do not interfere with the use made and proposed to
be made of
such property;
and any property held
under lease or sublease by the Company or
any of its subsidiaries is held under valid, subsisting and enforceable
leases
or subleases with such
exceptions as are not material and do not interfere with
the use made and
proposed to be made of
such property
by the Company and
its
subsidiaries; and neither the Company nor any of its subsidiaries
has any notice
or knowledge
of any material claim of any sort which has been, or may be,
asserted by anyone adverse to the Company's or any of its
subsidiaries'
rights
as lessee or sublessee under any lease or sublease described above,
or affecting
or questioning the Company's or any of its subsidiaries' rights to
the continued
possession of the leased or subleased premises under any such lease or
sublease
in conflict with the terms thereof.
(l)
Except as described in the Disclosure Package and the Prospectus,
there
is no factual basis
for any action,
suit or other
proceeding
involving the
Company or any of its
subsidiaries
or any of their
material assets for any
failure of the Company or any of its subsidiaries, or any predecessor thereof,
to comply with any requirements of federal, state or local regulation
relating
to air, water, solid
waste management,
hazardous or toxic
substances, or the
protection of health or the environment. Except as described in the
Prospectus,
none of the property
owned or leased by the Company or any of its subsidiaries
is, to the best
knowledge of the Company, contaminated with any waste or
hazardous substances, and neither the Company nor any of its
subsidiaries may be
deemed an "owner or operator" of a "facility" or "vessel" which
owns, possesses,
transports, generates
or disposes of a "hazardous substance" as those terms are
defined in
Section 9601 of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Section 9601 et
seq.
6
<PAGE>
(m)
No labor disturbance exists with the employees of the Company or
any of
its subsidiaries or is imminent which, individually or in the aggregate,
would
have a Material
Adverse Effect. None
of the employees of the Company or any of
its subsidiaries
is represented by a union and, to the best
knowledge of the
Company and its subsidiaries, no union organizing activities are taking place.
Neither the Company nor any of its subsidiaries has violated any
federal, state
or local law or foreign law relating to discrimination in hiring, promotion or
pay of employees,
nor any applicable wage or hour laws, or the rules and
regulations thereunder, or analogous foreign laws and regulations,
which might,
individually or in the aggregate, result in a Material Adverse
Effect.
(n)
The Company and its
subsidiaries are in
compliance
in all material
respects with all
presently applicable
provisions of the
Employee
Retirement
Income Security Act of 1974, as amended, including the regulations
and published
interpretations
thereunder ("ERISA");
no "reportable event" (as defined in
ERISA) has occurred with respect to any "pension plan" (as defined
in ERISA) for
which the Company and its subsidiaries would have any liability;
the Company and
its subsidiaries
have not incurred and
do not expect to incur
liability under
(A) Title IV of ERISA with respect to termination of, or withdrawal from, any
pension plan or (B)
Sections 412 or 4971 of the Internal Revenue Code of 1986,
as amended, including
the regulations and published interpretations thereunder
(the "Code");
and each pension plan for which the Company or any of its
subsidiaries would
have any liability
that is intended to be
qualified under
Section 401(a) of the Code is so qualified in all material
respects, and nothing
has occurred, whether by action or by failure to act, which would
cause the loss
of such qualification.
(o)
The Company and its subsidiaries maintain insurance of the types
and in
the amounts generally
deemed adequate for
their business,
including, but not
limited to, directors'
and officers'
insurance,
insurance covering real and
personal property
owned or leased by the Company and its subsidiaries against
theft, damage,
destruction,
acts of vandalism and
all other risks customarily
insured against, all of which insurance is in full force and
effect. Neither the
Company nor any of its
subsidiaries has been
refused any
insurance coverage
applied for,
and the Company has no reason to believe that it and its
subsidiaries will not be able to renew their existing insurance coverage as and
when such coverage
expires or to obtain similar coverage from similar insurers
as may be necessary to continue their business at a cost that would not
have a
Material Adverse Effect.
(p)
Neither the Company nor any of its subsidiaries is, or with the
giving
of notice or lapse of time or both
would be, in
default or violation with
respect to its Charter, Articles Supplementary, bylaws, partnership
agreements,
operating agreements or other governing documents, as the case may be. Neither
the Company
nor any of its
subsidiaries
is, or with the
giving of notice
or
lapse of time or both would be, in default in the performance or observance of
any material
obligation,
agreement,
covenant or
condition contained in any
indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or
instrument to which
the Company
or any of its
subsidiaries
is a party
7
<PAGE>
or by which the Company or any of its subsidiaries is bound or to which any of
the properties or assets of the Company or any of its subsidiaries is subject,
or in violation of any
statutes, laws,
ordinances
or governmental rules or
regulations or any orders or decrees to which it is subject,
including, without
limitation, Section
13 of the Exchange Act, which default or violation,
individually or in the aggregate, would have a Material Adverse
Effect. Neither
the Company nor any of
its subsidiaries
has, at any time
during the past five
years, (A) made any
unlawful contributions
to any candidate for
any political
office, or failed fully to disclose any contribution in violation
of law, or (B)
made any payment to any state, federal or foreign government
official, or other
person charged with
similar public or quasi-public duty (other than payment
required or permitted by applicable law).
(q)
Other than as set forth in the Disclosure Package and the Prospectus,
there are no legal or governmental proceedings pending to which the Company
or
any of its
subsidiaries is a
party or of which any
property of the Company or
any of its
subsidiaries is the
subject that, if
determined
adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have
a Material Adverse
Effect or which would
materially and
adversely affect
the
consummation of the transactions contemplated hereby or which is
required to be
disclosed in the
Prospectus; to the
best of the Company's
knowledge, no such
proceedings are threatened or contemplated.
(r)
The Company is not and, after giving effect to the offering and
sale of
the Shares, will not
be a "holding
company," or a
"subsidiary
company" of a
"holding company," or
an "affiliate" of a "holding company" or of a "subsidiary
company," as such terms are defined in the Public Utility Holding
Company Act of
1935, as amended (the "1935 Act").
(s)
The Company is not and, after giving effect to the offering and
sale of
the Shares, will not be an "investment company" or an entity "controlled"
by an
"investment company," as such terms are defined in the Investment
Company Act of
1940, as amended (the "1940 Act").
(t)
KPMG LLP, the independent registered public accounting firm which
has
certified the financial statements filed with or incorporated by reference in
and as a part of the Registration Statement, is a independent
registered public
accounting firm
within the meaning of the Act and the 1933 Act Rules and
Regulations. The
Company and each of its subsidiaries maintains a system of
internal accounting
controls sufficient to
provide reasonable
assurance that:
(A) transactions
are executed in accordance with management's general or
specific
authorizations; (B)
transactions are
recorded as necessary to permit
preparation of
financial statements
in conformity with generally accepted
accounting principles
and to maintain
accountability for assets; (C) access to
assets is permitted
only in accordance
with management's
general or
specific
authorization; and (D)
the recorded accounts
for assets is compared
with the
existing assets at
reasonable intervals
and appropriate
action is taken
with
respect thereto.
The
8
<PAGE>
consolidated financial
statements and
schedules of the Company, including the
notes thereto, filed
with (or incorporated
by reference) and as a
part of the
Registration Statement or Prospectus, are accurate in all material
respects and
present fairly the financial condition of the Company and its
subsidiaries as of
the respective
dates thereof and the
consolidated
results of operations
and
changes in financial
position and consolidated statements of cash flow for
the
respective periods
covered thereby, all
in conformity with generally accepted
accounting principles
applied on a
consistent
basis throughout the periods
involved except as otherwise disclosed therein. All adjustments
necessary for a
fair presentation
of results for such
periods have been made. The selected
financial data
included or incorporated by reference in the Registration
Statement and Prospectus present fairly the information
shown therein and
have
been compiled
on a basis consistent with that of the audited financial
statements. Any
operating or other statistical data included or incorporated by
reference in the
Registration Statement
and Prospectus comply
in all material
respects with the Act and the 1933 Act Rules and Regulations and present fairly
the information shown therein.
(u)
Except to the extent such rights have been waived with
respect to the
sale of the Shares,
no holder of any
security of the Company, or security
convertible into
a security of the Company, has any right to require
registration of shares
of Common Stock or any
other security
of the Company
because of the filing of the Registration Statement or the consummation of
the
transactions
contemplated hereby
and, except as
disclosed in the
Disclosure
Package and the
Prospectus,
no person has the
right to require
registration
under the Act of any shares of Common Stock or other securities of the Company.
No person has the
right, contractual
or otherwise, to cause the Company to
permit such person to underwrite the sale of any of the Shares.
Except for this
Agreement, there are
no contracts,
agreements or
understandings
between the
Company or any of its
subsidiaries
and any person that would give rise to a
valid claim against
the Company, its
subsidiaries
or the Underwriter for a
brokerage commission,
finder's fee or like payment in connection with the
issuance, purchase and sale of the Shares.
(v)
The Company has not distributed and, prior to the later to occur of
(A)
the Closing Date and (B) completion of the distribution of the
Shares, will not
distribute any offering material in connection with the offering
and sale of the
Shares other than the
Registration
Statement,
the Disclosure Package, the
Prospectus or documents incorporated therein by reference.
(w)
The Company has not
taken and will not take, directly or indirectly,
any action designed to or which might reasonably be expected to cause or
result
in stabilization or manipulation of the price of the Company's
Common Stock, and
the Company is not aware of any such action taken or to be taken by
affiliates
of the Company.
(x)
The Company represents
and warrants to you that any certificate signed
by any officer of the Company and delivered to the Underwriter or
to counsel for
the
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<PAGE>
Underwriter shall be deemed a representation and warranty by the Company to
the
Underwriter as to the matters covered thereby.
(y)
The Company represents and warrants to you that it is organized and
has
operated in conformity with the requirements for qualification and
taxation as a
real estate investment
trust ("REIT") for each of its taxable
years since its
formation and its
current organization and current and proposed method of
operation will enable it to continue to meet the requirements for
qualification
and taxation as a REIT. No transaction event has occurred which could
cause the
Company not to be able to qualify as a REIT for its current
taxable year or
any
future taxable year.
(z)
The Company represents
and warrants to you
that each of the Company's
investments that is a partnership or a limited liability company,
other than any
entity for which a taxable REIT subsidiary election has been made
("Subsidiary
Partnerships"), is
properly classified
either as a disregarded entity or as a
partnership, and
not as a corporation or as an association taxable as a
corporation, for
federal income tax
purposes throughout the period from its
formation through
the date hereof, or, in the case of any Subsidiary
Partnerships that have
terminated,
through the date of termination of such
Subsidiary Partnerships.
(aa)
The Company has retained KPMG LLP as its independent registered
public
accounting firm and qualified tax experts, and KPMG LLP (i) periodically
tests
procedures and
conduct annual compliance reviews designed to determine
compliance with the
REIT provisions of the Code and (ii) assists the Company in
monitoring what it
believes are appropriate accounting systems and procedures
designed to determine compliance with the REIT provisions of the
Code.
(bb)
The Company represents
and warrants to you that the statements in the
Company's Annual
Report on Form 10-K for the year ended December 31, 2007 under
Item 1A, "Risk
Factors" under the caption "Other Risks - We May Fail to
Qualify
as a REIT" and under the caption "Material United States Federal Income Tax
Consequences" in the Base Prospectus are accurate in all material
respects.
(cc)
The Disclosure
Package and the price to the public, the number of
Underwritten
Securities and the
number of Option
Securities to be included on
the cover page of the Prospectus, when taken together as a whole,
do not contain
any untrue statement
of a material fact or omit to state any
material fact
necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
preceding sentence
does not apply to statements in or omissions from the Disclosure Package based
upon and in conformity with written information furnished to the Company by
any
Underwriter
specifically for use
therein, it being
understood and agreed that
the only such information furnished by or on behalf of any
Underwriter consists
of the information described as such in Section 8 hereof.
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<PAGE>
(dd)
(1) At the time of filing the Registration Statement and (2) as of
the
Execution Time (with such date being used as the determination date
for purposes
of this clause (2)),
the Company was not
and is not an
Ineligible Issuer
(as
defined in Rule
405), without taking account of any determination by the
Commission pursuant
to Rule 405 that it is
not necessary
that the Company
be
considered an Ineligible Issuer.
(ee)
Each Issuer Free
Writing Prospectus, if any, does not include any
information that
conflicts with the information contained in the Registration
Statement, including any document incorporated by reference therein
that has not
been superseded or modified. The foregoing sentence does not apply
to statements
in or omissions
from any Issuer Free Writing Prospectus based upon and in
conformity with written information furnished to the Company by any
Underwriter
specifically for use therein, it being understood and agreed
that the only such
information furnished
by any Underwriter consists of the information described
as such in Section 8 hereof.
Any
certificate
signed by any officer
of the Company and delivered to the
Underwriter in
connection
with the offering of the Shares
shall be deemed a
representation and
warranty by the Company, as to matters covered thereby,
to
the Underwriter.
2.
Purchase and Sale. (a) Subject to the terms and conditions and in
reliance upon the
representations and
warranties herein set forth, the Company
agrees to sell to the Underwriter, and the Underwriter agrees, to
purchase from
the Company, at a purchase price of $47.81 per share, of 1,050,000
Underwritten
Securities.
(b)
Subject to the terms and conditions and in reliance upon the
representations and
warranties herein set
forth, the Company
hereby grants an
option to the
Underwriter to purchase, up to 157,500 Option Securities at the
same purchase price per share as the Underwriter shall pay for the Underwritten
Securities. Said
option may be exercised only to cover over-allotments in the
sale of the
Underwritten
Securities by the
Underwriter.
Said option may be
exercised in whole or
in part at any time on or before the 30th day after the
date of the Prospectus upon written or telegraphic notice by you to the Company
setting forth the number of shares of the Option Securities as to which you are
exercising the option and the settlement date.
3.
Delivery and Payment. Delivery of and payment for the Underwritten
Securities and the Option Securities (if the option provided for in
Section 2(b)
hereof shall have been
exercised on or before
the third Business Day
prior to
the Closing Date)
shall be made at 10:00
AM, New York City time, on April 29,
2008, or at such time on such later date not more than three
Business Days after
the foregoing date as the Underwriter shall designate, which date and time may
be postponed by agreement between the Underwriter and the Company
(such date and
time of delivery and
payment for the Shares
being herein
called the
"Closing
Date"). Delivery of
the Shares shall be made to the Underwriter against payment
by the Underwriter
of the purchase
price thereof to or upon the order of
the
Company by wire transfer payable in same-day funds
11
<PAGE>
to an account specified by the Company. Delivery of the Underwritten
Securities
and the Option Securities shall be made through the facilities of
The Depository
Trust Company unless the Underwriter shall otherwise instruct.
If
the option provided
for in Section 2(b)
hereof is exercised
after the
third Business
Day prior to the
Closing Date,
the Company
will deliver the
Option Securities
(at the expense of the
Company) to the
Underwriter, at
388
Greenwich Street,
New York, New York, on
the date specified by the Underwriter
(which shall be within three Business Days after exercise of said option) for
the account
of the Underwriter, against payment by the Underwriter of the
purchase price
thereof to or upon the
order of the Company
by wire transfer
payable in same-day funds to an account specified by the Company.
If settlement
for the Option
Securities occurs
after the Closing
Date, the Company will
deliver to the Underwriter on the settlement date for the Option
Securities, and
the obligation of the
Underwriter to
purchase the Option
Securities shall
be
conditioned upon
receipt of,
supplemental opinions,
certificates and
letters
confirming as of such date the opinions, certificates and letters
delivered on
the Closing Date pursuant to Section 6 hereof.
4.
Offering by the
Underwriter.
It is understood that the Underwriter
proposes to
offer the Shares for sale to the public as set forth in the
Prospectus.
5. Agreements. The
Company agrees with the Underwriter that:
(a)
The Company
will use its best
efforts to cause any post-effective
amendment to the Registration Statement, if not effective at the
Execution Time,
to become effective. Prior to the termination of the offering of
the Shares, the
Company will not file any amendment of the Registration
Statement or
supplement
(including the Final
Prospectus
or any Preliminary Prospectus) to the Base
Prospectus or any new
registration statement
unless the Company has
furnished
you a copy for your review prior to filing and will not file
any such proposed
amendment or supplement to which you reasonably object. Subject to
the foregoing
sentence, if the
filing of the
Prospectus is required
under Rule 424(b),
the
Company will
cause the Prospectus, properly completed, and any supplement
thereto to be filed in a form approved by you with the
Commission
pursuant to
the applicable
paragraph of Rule
424(b) within the time period prescribed and
will provide evidence
satisfactory
to you of such timely
filing. The
Company
will promptly
advise you (1) when any post-effective amendment to the
Registration
Statement, if not
effective at the Execution Time, shall become
effective, (2) when the Prospectus, and any supplement thereto, shall
have been
filed (if required) with the Commission pursuant to Rule 424(b);
(3) when, prior
to termination of the offering of the Shares, any post-effective amendment to
the Registration
Statement or new registration statement relating to the Shares
shall have been filed or become effective, (4) of any request by the
Commission
or its staff for any amendment of the Registration Statement, or
the filing of a
new registration
statement relating to
the Shares or for any supplement to the
Prospectus or for
any additional information, (5) of the issuance by the
Commission of
12
<PAGE>
any stop order suspending the effectiveness of the Registration Statement or
such new registration statement or the institution or threatening of any
proceeding for
that purpose and (6) of the receipt by the Company of any
notification with
respect to the suspension of the qualification of the Shares
for sale in any jurisdiction or the institution or threatening of
any proceeding
for such purpose. The
Company will use its best efforts to prevent the issuance
of any such stop
order or the
suspension
of any such
qualification,
and if
issued, to obtain as soon as possible the withdrawal thereof.
(b)
If, at any time prior to the filing of the Final Prospectus
pursuant to
Rule 424(b), any event
occurs as a result of which the Disclosure Package would
include any untrue
statement of a
material fact or omit
to state any material
fact necessary to make the statements therein in the light of the
circumstances
under which they were made at such time not misleading, the Company will (1)
notify promptly the
Underwriter so that
any use of the Disclosure Package may
cease until
it is amended or supplemented; (2) amend or supplement the
Disclosure Package to
correct such statement
or omission;
and (3) supply any
amendment or supplement to you in such quantities as you may
reasonably request.
(c)
If, at any time when a prospectus relating to the Shares is
required to
be delivered under the Act (including in circumstances where such requirement
may be satisfied
pursuant to Rule 172),
any event occurs as a
result of which
the Prospectus as then
supplemented
would include any untrue statement of a
material fact or
omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made
at such time not misleading, or if it shall be necessary to amend the
Registration Statement
or supplement the
Prospectus to comply
with the Act or
the Exchange Act or the respective rules thereunder, the Company promptly will
(1) notify you of such event, (2) prepare and file with the
Commission,
subject
to the second sentence
of paragraph
(a) of this
Section 5, an
amendment or
supplement which
will correct such statement or omission or effect such
compliance and (3) supply any supplemented Prospectus to you in such
quantities
as you may reasonably request.
(d)
As soon as
practicable, the
Company will make generally available to
its security
holders and to you an
earnings statement
or statements of the
Company and its subsidiaries which will satisfy the provisions
of Section 11(a)
of the Act and Rule 158.
(e)
The Company
will furnish to you and your
counsel, without charge,
signed copies of the Registration Statement (including exhibits
thereto) and, so
long as delivery of a prospectus by the Underwriter or dealer may
be required by
the Act (including in
circumstances
where such
requirement
may be satisfied
pursuant to Rule 172), as many copies of each Preliminary
Prospectus, the
Final
Prospectus and each Issuer Free Writing Prospectus and any
supplement thereto as
the Underwriter may reasonably request.
(f)
The Company will arrange, if necessary, for the qualification of the
Shares for sale under the laws of such jurisdictions as you may
designate, will
maintain such
13
<PAGE>
qualifications in
effect so long as required for the distribution of the Shares
and will pay any fee of FINRA in connection with its review of the offering;
provided that in no
event shall the
Company be obligated to qualify to do
business in any
jurisdiction where it
is not now so
qualified or to take
any
action that would
subject it to service
of process in suits,
other than those
arising out of the offering or sale of the Shares, in any
jurisdiction where
it
is not now so subject.
(g)
The Company agrees that, unless it has or shall have obtained the
prior
written consent the Underwriter agrees with the Company that,
unless it has or
shall have
obtained, as the case may be, the prior written consent of the
Company, it has not
and will not make any offer relating to the Shares that
would constitute
an Issuer Free
Writing Prospectus or that would otherwise
constitute a "free writing prospectus" (as defined in Rule 405) required
to be
filed by the Company with the Commission or retained by the Company under
Rule
433; provided
that the prior
written consent of the parties
hereto shall be
deemed to have been given in respect of the Free Writing
Prospectuses
included
in Schedule I hereto.
Any such free
writing prospectus consented to by the
Underwriter or the
Company is
hereinafter
referred to as a
"Permitted
Free
Writing Prospectus."
The Company agrees that (x) it has treated and will treat,
as the case may be, each Permitted Free Writing Prospectus as an Issuer Free
Writing Prospectus and
(y) it has complied and will comply, as the case may be,
with the requirements
of Rules 164 and 433
applicable
