Exhibit
1.1
KIMCO REALTY
CORPORATION
(A MARYLAND
CORPORATION)
DEBT
SECURITIES
UNDERWRITING
AGREEMENT
September 17,
2009
J.P. MORGAN SECURITIES
INC.
MORGAN STANLEY & CO.
INCORPORATED
WELLS FARGO SECURITIES,
LLC
BARCLAYS CAPITAL
INC.
RBC CAPITAL MARKETS
CORPORATION
RBS SECURITIES
INC.
SCOTIA CAPITAL (USA)
INC.
c/o J.P. Morgan
Securities Inc.
270 Park
Avenue
New York, NY
10017
Ladies and
Gentlemen:
Kimco Realty
Corporation, a Maryland corporation ( the
“Company”), proposes to issue and sell its
unsecured senior debt securities ( the
“Securities”) , from time to time, in one or
more offerings on terms to be determined at the time of sale.
The Securities will be issued under an indenture, dated as of
September 1, 1993, as amended by the first supplemental
indenture, dated as of August 4, 1994, the second supplemental
indenture, dated as of April 7, 1995, the third supplemental
indenture, dated as of June 2, 2006, the fourth supplemental
indenture, dated as of April 26, 2007, the fifth supplemental
indenture, to be dated as of September 24, 2009, and as further
amended or supplemented from time to time ( the
“Indenture”) , between the Company and The Bank
of New York Mellon, as trustee ( the
“Trustee”) . The Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended
( the “1939 Act”) , and the rules and
regulations of the Securities and Exchange Commission ( the
“Commission”) under the 1939 Act (the “
1939 Act Regulations ”). Each series of
Securities may vary, as applicable, as to aggregate principal
amount, maturity date, interest rate or formula and timing of
payments thereof, redemption and/or repayment provisions,
conversion provisions, sinking fund requirements, if any, and any
other variable terms which the Indenture contemplates may be set
forth in the Securities as issued from time to time. As used
herein, “you” and “your”, unless the
context otherwise requires, shall mean the parties to whom this
Agreement is addressed together with the other parties, if any,
identified in the applicable Terms Agreement (as hereinafter
defined) as additional co-managers with respect to Underwritten
Securities (as hereinafter defined) purchased pursuant
thereto.
Whenever the Company
determines to make an offering of Securities through you or through
an underwriting syndicate managed by you, the Company will enter
into an agreement ( the “Terms
Agreement”) providing for the sale of such Securities
( the “Underwritten
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Securities”)
to, and the purchase
and offering thereof by, you and such other underwriters, if any,
selected by you as have authorized you to enter into such Terms
Agreement on their behalf (the “Underwriters” ,
which term shall include you whether acting alone in the sale of
the Underwritten Securities or as a member of an underwriting
syndicate and any Underwriter substituted pursuant to
Section 10 hereof). The Terms Agreement relating to the
offering of Underwritten Securities shall specify the principal
amount of Underwritten Securities to be initially issued (
the “Underwritten Securities”) , the names of
the Underwriters participating in such offering (subject to
substitution as provided in Section 10 hereof), the principal
amount of Underwritten Securities which each such Underwriter
severally agrees to purchase, the names of such of you or such
other Underwriters acting as co-managers, if any, in connection
with such offering, the price at which the Underwritten Securities
are to be purchased by the Underwriters from the Company, the
initial public offering price, if any, of the Underwritten
Securities, the Applicable Time (as defined below), any and all
Issuer General Use Free Writing Prospectuses (as defined below),
the time, date and place of delivery and payment, any delayed
delivery arrangements and any other variable terms of the
Underwritten Securities (including, but not limited to, current
ratings, designations, denominations, interest rates or formulas,
interest payment dates, maturity dates, conversion provisions,
redemption and/or repayment provisions and sinking fund
requirements applicable to the Underwritten Securities). The
Terms Agreement, which shall be substantially in the form of
Exhibit A hereto, may take the form of an exchange of
any standard form of written telecommunication between you and the
Company. Each offering of Underwritten Securities through you
or through an underwriting syndicate managed by you will be
governed by this Agreement, as supplemented by the applicable Terms
Agreement.
The Company has filed
with the Commission an automatic shelf registration statement on
Form S-3 (No. 333-158762), including the related base
prospectus, which registration statement became effective upon
filing under Rule 462(e) of 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 the applicable Terms Agreement, the
Company will prepare and file a prospectus supplement relating to
the Underwritten Securities 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 such prospectus
supplement 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 base prospectus and prospectus supplement
thereto used in connection with the offering of the Underwritten
Securities that omitted Rule 430B Information, together with
the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the 1933 Act, is herein called a
“ preliminary prospectus ”. Such
registration statement, at each time of effectiveness under the
1933 Act and the 1933 Act Regulations prior to the execution of the
applicable Terms Agreement, 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 otherwise deemed to be a part thereof or included therein
by the 1933 Act Regulations, is herein called the “
Registration Statement ”; provided, however ,
that the term “Registration Statement” shall be deemed
to include information contained in the final prospectus supplement
relating to the Underwritten Securities that is retroactively
deemed to be a
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part of such
registration statement (as amended) as of the time specified in
Rule 430B of the 1933 Act Regulations. The Registration
Statement at the time it originally became effective is herein
called the “ Original Registration Statement .”
The base prospectus and final prospectus supplement, in the
form first furnished or made available to the Underwriters for use
in connection with the offering of the Underwritten 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 the applicable Terms Agreement, is herein called the
“ Prospectus .” For purposes of this
Agreement, all references to the Registration Statement, any
preliminary prospectus or 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” ).
All references in this
Agreement to financial statements and schedules and other
information which is “contained”,
“included” or “stated” (or other references
of like import) in the Registration Statement, any preliminary
prospectus or the Prospectus or any amendment or supplement thereto
shall be deemed to include all such financial statements and
schedules and other information which is or is deemed to be
incorporated by reference in or otherwise deemed by the 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 include the filing
of any document under the Securities Exchange Act of 1934, as
amended ( the “1934 Act” ), which is or is
deemed to be incorporated by reference in or otherwise deemed by
the 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, after the most recent effective
date prior to the execution of the applicable Terms Agreement, in
the case of the Registration Statement, or the respective dates of
the Prospectus or any preliminary prospectus, in the case of the
Prospectus and any preliminary prospectus.
Section 1.
Representations and Warranties .
(a)
The Company represents
and warrants to you, as of the date hereof, and to you and each
other Underwriter named in the applicable Terms Agreement, as of
the date thereof and as of the Closing Time referred to in
Section 2(b) hereof (in each case, a “Representation
Date” ), and agrees with each Underwriter, as
follows:
(i)
(A) At the time of
filing the Original Registration Statement, (B) at the time of
the most recent amendment thereto for the purposes of complying
with Section 10(a)(3) of the 1933 Act (whether such amendment
was by post-effective amendment, incorporated report filed pursuant
to Section 13 or 15(d) of the 1934 Act or form of prospectus),
(C) at the time the Company or any person acting on its behalf
(within the meaning, for this clause only, of Rule 163(c) of
the 1933 Act Regulations) made any offer relating to the
Underwritten Securities in reliance on the exemption of
Rule 163 of the 1933 Act Regulations (“
Rule 163 ”) and (D) as of the date of the
execution and delivery of this Agreement and the applicable Terms
Agreement (the “ Execution Date ”), the Company
was and is a “well-known seasoned issuer,” as defined
in Rule 405 of the 1933 Act Regulations (
“Rule 405” ). The Registration
Statement is an “automatic shelf registration
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statement,” as
defined in Rule 405. The Company is and remains eligible
to use the automatic shelf registration form and the Securities,
since their registration on the Registration Statement, have been
and remain eligible for registration by the Company on a
Rule 405 “automatic shelf registration statement.”
The Company has not received from the Commission any notice
pursuant to Rule 401(g)(2) of the 1933 Act Regulations
objecting to the use of the automatic shelf registration statement
form.
At the time of filing
the Original Registration Statement, at the earliest time
thereafter that the Company or another offering participant (after
being engaged by the Company in connection therewith) made a
bona fide offer (within the meaning of Rule 164(h)(2) of
the 1933 Act Regulations) of the Underwritten Securities and as of
the Execution Date, the Company was not and is not an
“ineligible issuer”, as defined in
Rule 405.
(ii)
The Original
Registration Statement became effective upon filing under
Rule 462(e) of the 1933 Act Regulations (
“Rule 462(e)” ) on April 24, 2009, and
any post-effective amendment thereto also became effective upon
filing under Rule 462(e). No stop order suspending the
effectiveness of the Registration Statement has been issued under
the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied
with.
Any offer that is a
written communication relating to the Underwritten Securities made
prior to the filing of the Original Registration Statement by the
Company or any person acting on its behalf (within the meaning, for
this paragraph only, of Rule 163(c) of the 1933 Act
Regulations) has been filed with the Commission in accordance with
the exemption provided by Rule 163 and otherwise complied with
the requirements of Rule 163, including without limitation the
legending requirement, to qualify such offer for the exemption from
Section 5(c) of the 1933 Act provided by
Rule 163.
At the respective times
the Original Registration Statement and each amendment thereto
became effective and at each deemed effective date with respect to
the Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act
Regulations, the Registration Statement complied, complies and will
comply in all material respects with the requirements of the 1933
Act, the 1933 Act Regulations, the 1939 Act and the 1939 Act
Regulations, and did not, does 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.
The Prospectus and each
amendment or supplement thereto, if any, at the time the Prospectus
or any such amendment or supplement is issued and at the Closing
Time, complied, complies and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations,
and neither the
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Prospectus nor any
amendment or supplement thereto, if any, included, includes or will
include an untrue statement of a material fact or omitted, omits 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 are made, not misleading.
Each preliminary
prospectus (including the base prospectus filed as part of the
Original Registration Statement or any amendment thereto) complied
when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus
delivered or made available to the Underwriters for use in
connection with each offering of Underwritten Securities was and
will, at the time of such delivery, be 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 (as defined below), neither (x) the Issuer General Use
Free Writing Prospectus(es) (as defined below) (including the Final
Term Sheet (as defined in Section 3(b))) issued at or prior to
the Applicable Time or any preliminary prospectus relating to the
Underwritten Securities delivered or made available to the
Underwriters prior to the execution of the applicable Terms
Agreement, 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 such time and date as indicated in the
applicable Terms Agreement.
“ 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
Underwritten 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
Underwritten Securities or of the offering thereof 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 A to the applicable Terms Agreement, and the Final
Term Sheet.
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“ Issuer
Limited Use Free Writing Prospectus ” means any Issuer
Free Writing Prospectus that is not an Issuer General Use Free
Writing Prospectus.
Each Issuer Free
Writing Prospectus, as of its date and at all subsequent times
through the completion of the public offer and sale of the
Underwritten Securities (which completion you shall promptly
communicate to the Company) or until any earlier date that the
Company notified or notifies you 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 or the
Prospectus.
The representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement, the Prospectus or any
Issuer Free Writing Prospectus made in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter through you expressly for use therein.
(iii)
The documents
incorporated or deemed to be incorporated by reference in the
Registration Statement, any preliminary prospectus or the
Prospectus, 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 1934 Act and the rules and regulations of
the Commission thereunder (the “1934 Act
Regulations” ), and, when read together with the other
information in the Registration Statement any preliminary
prospectus or the Prospectus, as the case may be, (a) at the
time the Original Registration Statement became effective,
(b) at the earlier of the time the Prospectus was first used
and the date and time of the first contract of sale of Underwritten
Securities and (c) at each Representation Date, did not and
will not include 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.
(iv)
The accountants who
certified the financial statements, financial statement schedules
and historical summaries of revenue and certain operating expenses
for the properties related thereto included or incorporated by
reference in the Registration Statement, the General Disclosure
Package or the Prospectus are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(v)
The historical
financial statements included or incorporated by reference in the
Registration Statement, the General Disclosure Package or the
Prospectus present fairly the financial position of the Company and
its consolidated subsidiaries as at the dates indicated and the
results of their operations for the periods specified; except as
may otherwise be stated in the Registration Statement, the General
Disclosure Package and the Prospectus, said financial statements
have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved; and the financial statement schedules and other financial
information and
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data included or
incorporated by reference in the Registration Statement, the
General Disclosure Package or the Prospectus present fairly the
information required to be stated therein.
(vi)
The historical
summaries of revenue and certain operating expenses included or
incorporated by reference in the Registration Statement, the
General Disclosure Package or the Prospectus, if any, present
fairly the revenue and those operating expenses included in such
summaries for the periods specified in conformity with generally
accepted accounting principles; the pro forma financial
statements included or incorporated by reference in the
Registration Statement, the General Disclosure Package or the
Prospectus, if any, present fairly the pro forma financial
position of the Company and its consolidated subsidiaries as at the
dates indicated and the pro forma results of their operations
for the periods specified; and the pro forma financial
statements, if any, have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis, the
assumptions on which such pro forma financial statements have
been prepared are reasonable and are set forth in the notes
thereto, such pro forma financial statements have been
prepared, and the pro forma adjustments set forth therein have
been applied, in accordance with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations, and such
pro forma adjustments have been properly applied to the
historical amounts in the compilation of such statements; other
than as set forth therein, the Company is not required to include
any financial statements pursuant to Rule 3-05 or
Rule 3-14 or pro forma financial statements in the
Registration Statement, the General Disclosure Package or the
Prospectus under the 1933 Act or the 1933 Act Regulations or under
the 1934 Act or the 1934 Act Regulations; and all disclosures
contained in the Registration Statement, the General Disclosure
Package or the Prospectus, if any, regarding “non-GAAP
financial measures” (as such term is defined by the rules and
regulations of the Commission) comply with Regulation G under
the 1934 Act and Item 10 of Regulation S-K of the 1933 Act
Regulations, to the extent applicable.
(vii)
Since the respective
dates as of which information is given in the Registration
Statement, the General Disclosure Package or the Prospectus, except
as may otherwise be stated therein or contemplated thereby,
(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, whether or not arising in the
ordinary course of business, (B) there have been no
transactions or acquisitions entered into by the Company or any of
its subsidiaries other than those in the ordinary course of
business, which are material with respect to the Company and its
subsidiaries considered as one enterprise, and (C) except for
regular quarterly dividends on the Company’s common stock,
par value $.01 per share (the “Common Stock”) ,
or dividends declared, paid or made in accordance with the terms of
any series of the Company’s preferred stock (the
“Preferred Stock”) , there has been no dividend or
distribution of any kind declared, paid or made by the Company on
any class of its capital stock.
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(viii)
The Company has been
duly incorporated and is validly existing as a corporation under
the laws of Maryland and is in good standing with the State
Department of Assessments and Taxation of Maryland with corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and the General
Disclosure Package; and the Company is duly qualified as a foreign
corporation 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 to so qualify would not be
reasonably expected to have a material adverse effect on the
condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise.
(ix)
Each significant
subsidiary (as defined in Rule 1-02 of Regulation S-X
promulgated under the 1933 Act) of the Company (each, a
“Significant Subsidiary”) has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation,
has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Prospectus and the General Disclosure Package and is duly qualified
as a foreign corporation 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 to so qualify
would not be reasonably expected to have a material adverse effect
on the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise; and all of the issued and outstanding
capital stock of each Significant Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and
is owned by the Company, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity, except for security interests granted
in respect of indebtedness of the Company or any of its
subsidiaries and referred to in the Prospectus and the General
Disclosure Package.
(x)
The Indenture has been
duly and validly authorized, executed and delivered by the Company
and constitutes the valid and legally binding obligations of the
Company, enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors’ rights generally or by general
equity principles (regardless of whether enforcement is considered
in a proceeding in equity or at law); and the Indenture has been
duly qualified under the 1939 Act.
(xi)
The Underwritten
Securities being sold pursuant to the applicable Terms Agreement
have been duly authorized by the Company for issuance and sale
pursuant to this Agreement and, when issued, authenticated and
delivered pursuant to the provisions of the Indenture, against
payment of the consideration therefor specified in the applicable
Terms Agreement, the Underwritten Securities
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will constitute valid
and legally binding obligations of the Company, enforceable in
accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of
creditors’ rights generally or by general equity principles
(regardless of whether enforcement is considered in a proceeding in
equity or at law); the Underwritten Securities and the Indenture
conform in all material respects to the respective statements
relating thereto contained in the Registration Statement, the
Prospectus and the General Disclosure Package and will be in
substantially the respective forms filed or incorporated by
reference, as the case may be, as exhibits to the Registration
Statement; and the Underwritten Securities will be entitled to the
benefits provided by the Indenture.
(xii)
Neither the Company nor
any of its subsidiaries is (A) in violation of its charter or
by-laws or (B) in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which the Company or any of its subsidiaries 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 of its subsidiaries
is subject, except, in the case of clause (A) (solely as it
relates to subsidiaries of the Company that are not Significant
Subsidiaries) and in the case of clause (B), for any such
violation or default that would not be reasonably expected to have
a material adverse effect on the condition, financial or otherwise,
or on the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise; and the
execution, delivery and performance of this Agreement, the
applicable Terms Agreement or the Indenture and the consummation of
the transactions contemplated herein and therein and compliance by
the Company with its obligations hereunder and thereunder, have
been duly authorized by all necessary corporate action and do not
and will not conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which
the Company or any of its subsidiaries 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 of its subsidiaries is subject, nor will such
action result in any violation of the provisions of the charter or
by-laws of the Company or any applicable law, administrative
regulation or administrative or court order or decree.
(xiii)
The Company has
operated and intends to continue to operate in such a manner as to
qualify to be taxed as a “real estate investment trust”
under the Internal Revenue Code of 1986, as amended ( the
“Code”) , for the taxable year in which sales of
the Underwritten Securities are to occur.
(xiv)
Neither the Company nor
any of its subsidiaries is, and immediately after giving effect to
the sale of the Underwritten Securities in accordance with this
Agreement and the applicable Terms Agreement and
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the application of the
proceeds as described in the Prospectus under the caption
“Use of Proceeds”, neither the Company nor any of its
subsidiaries will be, an “investment company” within
the meaning of the Investment Company Act of 1940, as amended
( the “1940 Act”) .
(xv)
There is no action,
suit or proceeding before or 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 of its
subsidiaries, which is required to be disclosed in the Registration
Statement, the Prospectus or the General Disclosure Package (other
than as disclosed therein), or which might be reasonably expected
to result in any 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, or which might be reasonably expected to
materially and adversely affect the properties or assets thereof or
which might materially and adversely affect the consummation of
this Agreement, the applicable Terms Agreement or the Indenture or
the transactions contemplated herein or therein; all pending legal
or governmental proceedings to which the Company or any of its
subsidiaries is a party or of which any of its property or assets
is the subject which are not described in the Registration
Statement, the Prospectus and the General Disclosure Package,
including ordinary routine litigation incidental to the business,
are, considered in the aggregate, not material; and there are no
contracts or documents of the Company or any of its subsidiaries
which are required to be filed as exhibits to the Registration
Statement by the 1933 Act or by the 1933 Act Regulations which have
not been so filed.
(xvi)
Neither the Company nor
any of its subsidiaries is required to own or possess any
trademarks, service marks, trade names or copyrights in order to
conduct the business now operated by it, other than those the
failure to possess or own would not be reasonably expected to have
a material adverse effect on the condition, financial or otherwise,
or on the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one
enterprise.
(xvii)
No authorization,
approval or consent of any court or governmental authority or
agency is required that has not been obtained in connection with
the authorization, execution, delivery or performance of the
Underwritten Securities or the consummation by the Company of the
transactions contemplated by this Agreement, the applicable Terms
Agreement or the Indenture, except such as may be required under
the 1933 Act, the 1933 Act Regulations, the 1939 Act, the
1939 Act Regulations or state securities laws or real estate
syndication laws.
(xviii)
The Company and its
subsidiaries possess such certificates, authorities or permits
issued by the appropriate state, federal or foreign regulatory
agencies or bodies necessary to conduct the business now operated
by them, other than those the failure to possess or own would not
be reasonably expected to have a material adverse effect on the
condition, financial or otherwise, or on the
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earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, and neither the Company nor any of
its subsidiaries has received any notice of proceedings relating to
the revocation or modification of any such certificate, authority
or permit except any, the loss of which, singly or in the
aggregate, would not be reasonably expected to materially and
adversely affect the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise.
(xix)
The Company has full
corporate power and authority to enter into this Agreement and the
applicable Terms Agreement, and this Agreement has been, and as of
each Representation Date, the applicable Terms Agreement will have
been, duly authorized, executed and delivered by the
Company.
(xx)
Except as otherwise
disclosed in the Registration Statement, the Prospectus and the
General Disclosure Package and except as would not have a material
adverse effect on the condition, financial or otherwise, or on the
earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise: (i) all
properties and assets described in the Registration Statement, the
Prospectus or the General Disclosure Package are owned with good
and marketable title by the Company, its subsidiaries and/or a
joint venture or partnership in which any such party is a
participant ( a “Related Entity”) ;
(ii) all of the leases under which any of the Company, its
subsidiaries or, to the knowledge of the Company, Related Entities
holds or uses real properties or assets as a lessee are in
full force and effect, and neither the Company, nor any of its
subsidiaries or, to the knowledge of the Company, Related Entities
is in material default in respect of any of the terms or provisions
of any of such leases and no claim has been asserted by anyone
adverse to any such party’s rights as lessee under any of
such leases, or affecting or questioning any such party’s
right to the continued possession or use of the leased property or
assets under any such leases; (iii) all liens, charges,
encumbrances, claims or restrictions on or affecting the properties
and assets of any of the Company, its subsidiaries or Related
Entities which are required to be disclosed in the Registration
Statement, the Prospectus or the General Disclosure Package are
disclosed therein; (iv) neither the Company, nor any of its
subsidiaries or, to the knowledge of the Company, Related Entities
nor any lessee of any portion of any such party’s properties
is in default under any of the leases pursuant to which any of the
Company, its subsidiaries or, to the knowledge of the Company,
Related Entities leases its properties and neither the Company, nor
any of its subsidiaries or Related Entities knows of any event
which, but for the passage of time or the giving of notice, or
both, would constitute a default under any of such leases;
(v) no tenant under any of the leases pursuant to which any of
the Company, or its subsidiaries or, to the knowledge of the
Company, Related Entities leases its properties has an option or
right of first refusal to purchase the premises demised under such
lease; (vi) each of the properties of any of the Company or,
to the knowledge of the Company, its subsidiaries or Related
Entities complies with all applicable codes and zoning laws and
regulations; and (vii) neither the Company nor any of its
subsidiaries has
11
knowledge of any
pending or threatened condemnation, zoning change or other
proceeding or action that will in any manner affect the size
of, use of, improvements on, construction on, or access to the
properties of any of the Company, its subsidiaries or Related
Entities.
(xxi)
Title insurance in
favor of the mortgagee or the Company, its subsidiaries and/or
their Related Entities is maintained with respect to each shopping
center property owned by any such entity in an amount at least
equal to (a) the cost of acquisition of such property or
(b) the cost of construction of such property (measured at the
time of such construction), except, in each case, where the failure
to maintain such title insurance would not be reasonably expected
to have a material adverse effect on the condition, financial or
otherwise, or on the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise.
(xxii)
The mortgages and deeds
of trust encumbering the properties and assets described in the
Registration Statement, the Prospectus or the General Disclosure
Package are not convertible nor does any of the Company or its
subsidiaries hold a participating interest therein.
(xxiii)
Each of the partnership
and joint venture agreements to which the Company or any of
its subsidiaries is a party, and which relates to real property
described in the Registration Statement, the Prospectus or the
General Disclosure Package, has been duly authorized, executed and
delivered by such applicable party and constitutes the valid
agreement thereof, enforceable in accordance with its terms, except
as limited by (a) the effect of bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting the rights or remedies
of creditors or (b) the effect of general principles of
equity, whether enforcement is considered in a proceeding in equity
or at law, and the discretion of the court before which any
proceeding therefor may be brought, and the execution, delivery and
performance of any of such agreements did not, at the time of
execution and delivery, and does not constitute a breach of, or
default under, the charter or by-laws of such party or any material
contract, lease or other instrument to which such party is a party
or by which its properties may be bound or any law, administrative
regulation or administrative or court order or decree.
(xxiv)
None of the Company or
any of its subsidiaries has any knowledge of (a) the unlawful
presence of any hazardous substances, hazardous materials, toxic
substances or waste materials ( collectively ,
“Hazardous Materials”) on any of the properties
owned by it or the Related Entities, or (b) any unlawful
spills, releases, discharges or disposal of Hazardous Materials
that have occurred or are presently occurring off such properties
as a result of any construction on or operation and use of such
properties which presence or occurrence would have a material
adverse effect on the condition, financial or otherwise, or on the
earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise; and in connection
with the construction on or
12
operation and use of
the properties owned by the Company, its subsidiaries and Related
Entities, each of the Company and its subsidiaries represents that
it has no knowledge of any material failure to comply with all
applicable local, state and federal environmental laws,
regulations, ordinances and administrative and judicial orders
relating to the generation, recycling, reuse, sale, storage,
handling, transport and disposal of any Hazardous
Materials.
(xxv)
The Company and each of
its subsidiaries maintain 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 United
States generally accepted accounting principles and to maintain
accountability for assets; (3) access to assets is permitted
only in accordance with management’s general or specific
authorization; and (4) 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, the
Prospectus and the General Disclosure Package, since the end of the
Company’s most recent audited fiscal year, there has been
(I) 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 and its
consolidated subsidiaries employ 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.
(xxvi)
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.
(xxvii)
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.
(b)
Any certificate signed
by any officer of the Company and delivered to you or to counsel
for the Underwriters in connection with the offering of the
Underwritten Securities shall
13
be deemed a
representation and warranty by the Company to each Underwriter
participating in such offering as to the matters covered thereby on
the date of such certificate and, unless subsequently amended or
supplemented, at each Representation Date subsequent
thereto.
Section 2.
Purchase and Sale .
(a)
The several commitments
of the Underwriters to purchase the Underwritten Securities
pursuant to the applicable Terms Agreement shall be deemed to have
been made on the basis of the representations and warranties herein
contained and shall be subject to the terms and conditions herein
set forth.
(b)
Payment of the purchase
price for, and delivery of, the Underwritten Securities to be
purchased by the Underwriters shall be made at the office of Sidley
Austin LLP, 787 Seventh Avenue, New York, New York 10019, or at
such other place as shall be agreed upon by you and the Company, at
9:00 A.M., New York City time, on the third (or fourth, if the
applicable Terms Agreement is entered into after 4:30 P.M.
(Eastern Time) on any given day) business day (unless
postponed in accordance with the provisions of Section 10
hereof) following the date of the applicable Terms Agreement or at
such other time as shall be agreed upon by you and the Company
(each such time and date being referred to as a “Closing
Time” ). Unless otherwise specified in the
applicable Terms Agreement, payment shall be made to the Company by
wire transfer of same-day funds payable to the order of the Company
against delivery to you for the respective accounts of the
Underwriters for the Underwritten Securities to be purchased by
them. The Underwritten Securities shall be in such authorized
denominations and registered in such names as you may request in
writing at least one business day prior to the Closing Time.
The Underwritten Securities, which may be in temporary form,
will be made available for examination and packaging by you on or
before the first business day prior to the Closing Time.
Section 3.
Covenants of the Company . The Company covenants with
you and with each Underwriter participating in the offering of
Underwritten Securities, as follows:
(a)
The Company, subject to
Section 3(b), will comply with the requirements of
Rule 430B and will notify you as soon as reasonably possible,
(i) when any post-effective amendment to the Registration
Statement or a new registration statement relating to the
Securities shall become effective, or any amendment or supplement
to the Prospectus or any preliminary prospectus shall have been
filed, (ii) of the receipt of any comments from the Commission,
(iii) of any request by the Commission for any amendment to the
Registration Statement or the filing of a new registration
statement or any amendment or supplement to the Prospectus or any
preliminary prospectus or any document incorporated by reference
therein or otherwise deemed to be a part thereof or for additional
information, (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or
such new registration statement or of any order preventing or
suspending the use of the Prospectus or any preliminary prospectus,
or of the suspension of the qualification of the Underwritten
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 p
