Attached files
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8-K - FORM 8-K - EPR PROPERTIES | c54643e8vk.htm |
EX-5.1 - EX-5.1 - EPR PROPERTIES | c54643exv5w1.htm |
EX-8.1 - EX-8.1 - EPR PROPERTIES | c54643exv8w1.htm |
Exhibit 1.1
5,500,000 Common Shares of Beneficial Interest
ENTERTAINMENT
PROPERTIES TRUST
November 10, 2009
J.P. Morgan Securities Inc.
383 Madison Avenue
New York, NY 10179
383 Madison Avenue
New York, NY 10179
as Representative of the several Underwriters
Ladies/Gentlemen:
Entertainment Properties Trust, a Maryland real estate investment trust (the
Company), proposes, subject to the terms and conditions stated herein, to issue and sell
to J.P. Morgan Securities Inc. (JPMorgan) and each of the underwriters named in
Schedule I hereto (collectively the Underwriters, which term shall also include
any underwriter substituted hereinafter provided in Section 2(e) hereof) for which JPMorgan is
acting as representative (in such capacity, the Representative) an aggregate of 5,500,000
(the Firm Shares) of its common shares of beneficial interest, par value $0.01 per share
(the Common Shares), as set forth on Schedule I hereto, and, at the option of the
Underwriters, up to an additional 825,000 Common Shares (the Additional Shares). The
Firm Shares and any Additional Shares purchased by the Underwriters are referred to herein as the
Shares. The Representative is acting as sole book-running manager in connection with the
public offering of the Shares that the Underwriters intend to conduct (the Offering).
1. Representations and Warranties of the Company. The Company represents and warrants
to, and agrees with, each of the Underwriters as of the date hereof, as of the Applicable Time (as
defined below), as of the Closing Date (as defined below) and, if applicable, as of the time of any
Additional Closing Date (as defined below) that:
(a) The Company has filed with the Securities and Exchange Commission (the
Commission) an automatic shelf registration statement on Form S-3 (No. 333-140978) for
the registration of common shares, preferred shares, depositary shares, warrants and debt
securities, including the Shares, under the Securities Act of 1933, as amended (the Securities
Act), and the offering thereof from time to time in accordance with Rule 430A or Rule 415 of
the rules and regulations of the Commission under the Securities Act (the Securities Act Rules
and Regulations), and the Company has filed such post-effective amendments thereto as may be
required prior to the execution of this Agreement. Such registration statement (as so amended, if
applicable) automatically became effective under the Securities Act upon filing with
the Commission. The registration statement and prospectus may have been amended or
supplemented prior to the date of this Agreement; any such amendment or supplement was prepared and
filed, and any such amendment, filed after the effective date of such registration statement has
automatically become effective. No stop order suspending the effectiveness of the registration
statement has been issued, and no proceeding for that purpose has been instituted or threatened by
the Commission. A prospectus supplement (the Prospectus Supplement) to the base
prospectus dated February 27, 2007 included as part of the registration statement (the Base
Prospectus) setting forth the terms of the offering, sale and plan of distribution of the Shares
and additional information concerning the Company and its business has been or will be prepared and
filed (together with the prospectus included in the registration statement) in accordance with the
provisions of Rule 430B of the Securities Act Rules and Regulations and pursuant to Rule 424(b) of
the Securities Act Rules and Regulations on or before the second business day after the date hereof
(or such earlier time as may be required by the Rules and Regulations). The registration
statement, as it may have heretofore been amended at the time it became effective, including the
information, if any, deemed to be a part thereof pursuant to Rule 430A(b) of the Securities Act
Rules and Regulations or Rule 430B of the Securities Act Rules and Regulations, is referred to
herein as the Registration Statement. Any Registration Statement filed by the Company
pursuant to Rule 462(b) of the Securities Act is hereinafter called the Rule 462(b)
Registration Statement and from and after the date and time of filing the Rule 462(b)
Registration Statement, the term Registration Statement shall include the Rule 462(b)
Registration Statement. The Base Prospectus, and the final Prospectus Supplement, in the form
first furnished (electronically or otherwise) to the Underwriters for use in connection with the
offering of the Shares (whether to meet the requests of purchasers pursuant to Rule 173 of the
Securities Act Rules and Regulations or otherwise) or, if not furnished to the Underwriters, in the
form first filed by the Company pursuant to Rule 424(b) of the Securities Act Rules and
Regulations, together with the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 of the Securities Act, are herein called, collectively, the Prospectus. Copies
of the Registration Statement and the Prospectus, any amendments or supplements thereto and all
documents incorporated by reference therein that were filed with the Commission on or prior to the
date of this Agreement (including one fully executed copy of the Registration Statement and of each
amendment thereto) have been delivered to the Underwriters and their counsel. The Base Prospectus,
and any preliminary Prospectus Supplement relating to the offering of the Shares (a
Preliminary Prospectus Supplement), preliminary prospectus or prospectus subject to
completion, in the form first furnished (electronically or otherwise) to the Underwriters for use
in connection with the offering of the Shares or, if not furnished to the Underwriters, in the form
filed as part of the Registration Statement as originally filed or first filed by the Company
pursuant to Rule 424(b) under the Securities Act Rules and Regulations, together with the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act, is
hereafter called a Preliminary Prospectus. Issuer Free Writing Prospectus
means any issuer free writing prospectus, as defined in Rule 433 of the Securities Act Rules and
Regulations, relating to the Shares 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 Companys records pursuant to Rule
433(g) of the Securities Act Rules and Regulations. General Use Issuer Free Writing
Prospectus means any Issuer Free Writing Prospectus that is intended for general
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distribution to prospective investors, as evidenced by its being specified as such in
Schedule II to this Agreement. Limited Use Issuer Free Writing Prospectus means
any Issuer Free Writing Prospectus that is not a General Use Issuer Free Writing Prospectus.
Applicable Time means 8:30 a.m. (Eastern time) on
November 10, 2009, or such other date
and time agreed to by the Company and the Representative. Any reference herein to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under
the Securities Exchange Act of 1934, as amended (the Exchange Act), on or before the
effective date of the Registration Statement, the date of such Preliminary Prospectus or the date
of the Prospectus, as the case may be, and any reference herein to the terms amend,
amendment or supplement with respect to the Registration Statement, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include (i) the filing of
any document under the Exchange Act after the effective date of the Registration Statement, the
date of such Preliminary Prospectus or the date of the Prospectus, as the case may be, which is
incorporated therein by reference and (ii) any such document so filed. For purposes of this
Agreement, all references to the Registration Statement, the Prospectus, Prospectus Supplement,
Preliminary Prospectus Supplement, Preliminary Prospectus or Issuer Free Writing Prospectus or to
any amendment or supplement thereto shall be deemed to include any copy filed with the Electronic
Data Gathering Analysis and Retrieval System (EDGAR), and such copy shall be identical in content
to any Prospectus delivered to the Underwriters for use in connection with the Offering.
(b) Each part of the Registration Statement and any post-effective amendment thereto, when
such part became or becomes effective (including at each deemed effective date with respect to the
Underwriters pursuant to Rule 430B(f)(2) of the Securities Act Rules and Regulations), at the date
of the filing of the Companys most recent Annual Report on Form 10-K, at the Closing Date (as
hereinafter defined) and, if later, at any Additional Closing Date (as hereinafter defined), and
the Prospectus and any amendment or supplement thereto, on the date of filing thereof with the
Commission, at the Closing Date and at any Additional Closing Date, conformed or will conform in
all material respects with the requirements of the Securities Act and the Securities Act Rules and
Regulations; each part of the Registration Statement and any post-effective amendment thereto, when
such part became or becomes effective (including at each deemed effective date with respect to the
Underwriters pursuant to Rule 430B(f)(2) of the Securities Act Rules and Regulations), or when such
part was or is filed with the Commission, or at the date of the filing of the Companys most recent
Annual Report on Form 10-K, did not or 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 any amendment or supplement thereto, on the date of the
filing thereof with the Commission, at the Closing Date and, if later, at any Additional Closing
Date, did not or will not include an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the circumstances under which
they were made, not misleading. When any related Preliminary Prospectus was first filed with the
Commission (whether filed as part of the registration statement for the registration of the Shares
or any amendment thereto or pursuant to Rule 424(a) under the Securities Act) and when any
amendment thereof or supplement thereto was first filed with the Commission, such Preliminary
Prospectus and any
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amendments thereof and supplements thereto complied in all material respects with the
applicable provisions of the Securities Act, the Exchange Act and the Rules and Regulations and did
not contain an untrue statement of a material fact and did not omit to state any material fact
required to be stated therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. No representation and warranty is made
in this subsection (b) however, with respect to any information contained in or omitted from the
Registration Statement or the Prospectus or any related Preliminary Prospectus or any amendment
thereof or supplement thereto in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of the Underwriters through the Representative specifically
for use therein. The parties acknowledge and agree that such information provided by or on behalf
of the Underwriters through the Representative consists solely of the fourth, fifth, sixth and
seventh sentences of the paragraph under the caption UnderwritingConflicts of interest in the
Prospectus Supplement (the Specified Information). The Company has not distributed, and
prior to the later of the Closing Date and the completion of the distribution of the Shares, will
not distribute, any offering material in connection with the offering or sale of the Shares other
than the Registration Statement, the Preliminary Prospectus Supplement, the Prospectus or any other
materials, if any, permitted by the Securities Act (which were disclosed to the Underwriters and
Underwriter Counsel and are listed on Schedule II hereof other than documents referred to
in clause (C) of Section 1(d)).
(c) (i) (A) At the time of filing the Registration Statement, (B) at the time of the most
recent amendment thereto, if any, 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
the Exchange 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 Securities Act Rules and
Regulations) made any offer relating to the Shares in reliance on the exemption provided by Rule
163 of the Securities Act Rules and Regulations and (D) at the date hereof, the Company was and is
a well-known seasoned issuer as defined in Rule 405 of the Securities Act Rules and Regulations
(Rule 405). At the time of filing the Registration Statement and at the date of this
Agreement, the Company was not and is not an ineligible issuer as defined in Rule 405, including
as a result of (x) the Company or any subsidiary of the Company in the preceding three years having
been convicted of a felony or misdemeanor or having been made the subject of a judicial or
administrative decree or order as described in Rule 405 and (y) the Company in the preceding three
years having been the subject of a bankruptcy petition or insolvency or similar proceeding, having
had a registration statement be the subject of a proceeding under Section 8 of the Securities Act
or being the subject of a proceeding under Section 8A of the Securities Act in connection with the
offering of the Shares, all as described in Rule 405. The Company has not received from the
Commission any notice pursuant to the Securities Act Rules and Regulations objecting to the use of
the automatic shelf registration statement form. The Shares, since their registration on the
Registration Statement, have been and remain eligible for registration by the Company on an
automatic shelf registration statement as defined under Rule 405.
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(d) As of the Applicable Time, neither (i) (A) the General Use Issuer Free Writing
Prospectus(es) issued at or prior to the Applicable Time, (B) the Preliminary Prospectus or latest
prospectus supplement included in the Registration Statement and (C) the documents mutually agreed
to by the Company and the Representative in a writing specifically referencing this clause (C) of
Section 1(d) considered together (collectively, the General Disclosure Package), nor (ii)
any individual Limited Use Issuer 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. The preceding sentence does not apply to
statements contained in or omitted from any prospectus included in the Registration Statement or
any Issuer Free Writing Prospectus in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of the Underwriters through the Representative specifically
for use therein. The parties acknowledge and agree that such information provided by or on behalf
of the Underwriters through the Representative consists solely of the Specified Information.
(e) 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 Shares or until any earlier date that
the Company notified or notifies the Underwriters as described in the next sentence, did not, does
not and will not include any information that conflicted, conflicts or will conflict with the
information then contained in the Registration Statement or the Prospectus. If at any time
following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or
development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict
with the information then contained in the Registration Statement 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, (i) the Company has promptly notified or will promptly notify the
Underwriters and (ii) the Company has promptly amended or will promptly amend or supplement such
Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
The foregoing two sentences do not apply to statements contained in or omitted from any Issuer Free
Writing Prospectus in reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of the Underwriters through the Representative specifically for use
therein. The parties acknowledge and agree that such information provided by or on behalf of the
Underwriters through the Representative consists solely of the Specified Information.
(f) The documents incorporated or deemed to be incorporated by reference in the Registration
Statement, the Preliminary Prospectus and the Prospectus, at the time they became or become
effective or were or hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the Securities Act and the Exchange Act and the rules
and regulations of the Commission under the Exchange Act (the Exchange Act Rules and
Regulations and, together with the Securities Act Rules and Regulations, the Rules and
Regulations) and, when read together with the other information in the Preliminary Prospectus
and the Prospectus, at the time the Registration Statement and any
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amendments thereto become effective, at the Applicable Time, at the date of the Prospectus and
at the Closing Date and any Additional Closing Date, 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, in the light of the circumstances under which they were
made, not misleading.
(g) KPMG LLP, which has certified certain of the financial statements and supporting schedules
and information incorporated by reference in the Registration Statement is and, during the periods
covered by their reports incorporated by reference in the Registration Statement, was an
independent registered public accounting firm as required by the Securities Act, the Exchange Act,
the Rules and Regulations and the PCAOB, except to the extent that registration with the PCAOB was
not required thereunder during an applicable period, in which case KPMG LLP consisted of
independent public accountants as required by the Securities Act, the Exchange Act and the Rules
and Regulations then in effect. KPMG LLP has not notified the Company, the Companys board of
trustees or the audit committee of the board of trustees of any illegal acts that are required to
be reported pursuant to Section 10A of the Exchange Act.
(h) Subsequent to the respective dates as of which information is given in the Registration
Statement, the General Disclosure Package (including as of the Applicable Time) and the Prospectus,
except as set forth in the Registration Statement, the General Disclosure Package and the
Prospectus, (A) there has been no change in the earnings, assets, properties, business, results of
operations, shareholders equity, prospects, affairs or condition (financial or otherwise) of the
Company and each subsidiary of the Company listed on Exhibit A hereto (the
Subsidiaries), taken as a whole, which has had or would reasonably be expected to have a
Material Adverse Effect (as defined in Section 1(m) below), (B) there has been no casualty, loss,
condemnation or other adverse event with respect to any property or interest therein owned,
directly or indirectly, by the Company or any Subsidiary which has had or would reasonably be
expected to have a Material Adverse Effect, (C) there have been no transactions entered into by the
Company or any Subsidiary, other than those in the ordinary course of business, which are material
with respect to the Company and the Subsidiaries taken as a whole, (D) except for regular quarterly
distributions on the Common Shares, 7.75% Series B Cumulative Redeemable Preferred Shares of
Beneficial Interest, par value $.01 per share (liquidation preference $25.00 per share) (the
Series B Preferred Shares), 5.75% Series C Cumulative Convertible Preferred Shares of
Beneficial Interest, par value $.01 per share (liquidation preference $25.00 per share) (the
Series C Preferred Shares), 7.375% Series D Cumulative Redeemable Preferred Shares of
Beneficial Interest, par value $.01 per share (liquidation preference $25.00 per share) (the
Series D Preferred Shares) and 9.00% Series E Cumulative Convertible Preferred Shares of
Beneficial Interest, par value $.01 per share (liquidation preference $25.00 per share) (the
Series E Preferred Shares), which have been publicly announced through the date of this
Agreement, there has been no dividend or distribution of any kind declared, paid or made by the
Company on any class of its shares of beneficial interest, and (E) there has been no material
increase in long-term debt or decrease in the capital of the Company or the Subsidiaries, taken as
a whole, other than in the ordinary
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course of their businesses (each, a Material Adverse Change). Since the date of the
latest balance sheet presented in the Registration Statement, Preliminary Prospectus and the
Prospectus, neither the Company nor any of the Subsidiaries has incurred or undertaken any
liabilities or obligations, direct or contingent, or entered into any transactions which are
material to the Company and the Subsidiaries, taken as a whole, except for liabilities, obligations
and transactions which are reflected in the Registration Statement, the General Disclosure Package
and the Prospectus.
(i) This Agreement and the transactions contemplated by this Agreement, the Registration
Statement and the Prospectus have been duly and validly authorized by the Company and this
Agreement has been duly and validly executed and delivered by the Company.
(j) The execution, delivery, and performance of this Agreement and the consummation of the
transactions contemplated by this Agreement, the Registration Statement and the Prospectus
(including the issuance and sale of the Shares and the use of proceeds from the sale of the Shares
as described under the caption Use of Proceeds) do not and will not (i) conflict with, require
consent under or result in a breach of any of the terms and provisions of, or constitute a
Repayment Event (as defined below) or default (or an event which with notice or lapse of time, or
both, would constitute a Repayment Event 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 the
Subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement or other
agreement, instrument, franchise, license or permit to which the Company or any of the Subsidiaries
is a party or by which the Company or any of the Subsidiaries or their respective properties,
operations or assets may be bound or (ii) violate or conflict with any provision of the declaration
of trust, certificate or articles of incorporation, by-laws, certificate of formation, limited
liability company agreement, partnership agreement or any other organizational document of the
Company or any of the Subsidiaries or any judgment, decree, order, statute, rule or regulation of
any court or any public, governmental or regulatory agency or body, domestic or foreign, having
jurisdiction over the Company or any of the Subsidiaries or any of their respective properties,
operations or assets. As used herein, Repayment Event means any event or condition that
gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on
such holders behalf) the right to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company or any Subsidiary. No consent, approval,
authorization, order, registration, filing, qualification, license or permit of or with any court
or any public, governmental or regulatory agency or body, domestic or foreign, having jurisdiction
over the Company or any of the Subsidiaries or any of their respective properties, operations or
assets, or any third party, is required for the execution, delivery and performance of this
Agreement or the consummation of the transactions contemplated by this Agreement, the Registration
Statement and the Prospectus, including the issuance, sale and delivery of the Shares to be issued,
sold and delivered hereunder, except the registration under the Securities Act of the Shares,
filings with the New York Stock Exchange and the Commission of the Prospectus, and such consents,
approvals, authorizations, orders, registrations, filings, qualifications, licenses and permits as
may be required under state
7
securities or Blue Sky laws in connection with the purchase and distribution of the Shares by
the Underwriters, each of which has been obtained.
(k) The authorized, issued and outstanding shares of beneficial interest of the Company is as
set forth in the General Disclosure Package and the Prospectus in the column entitled Actual
under the caption Capitalization and, after giving effect to the Offering and the other
transactions contemplated by this Agreement, the Registration Statement and the Prospectus, will
be, as of the date indicated and as set forth in the column entitled As Adjusted under the
caption Capitalization. There is no class or series of shares of beneficial interest of the
Company authorized other than the Common Shares, 9.50% Series A Cumulative Redeemable Preferred
Shares of Beneficial Interest, par value $.01 per share (liquidation preference $25.00 per share),
Series B Preferred Shares, Series C Preferred Shares, Series D Preferred Shares and Series E
Preferred Shares. There is no class or series of shares of beneficial interest of the Company
issued or outstanding other than the Common Shares, Series B Preferred Shares, Series C Preferred
Shares, Series D Preferred Shares and Series E Preferred Shares. All of the issued and outstanding
shares of beneficial interest of the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and were not issued in violation of or subject to any preemptive or
similar rights arising by operation of law under the organizational documents of the Company or
under any agreement to which the Company or any of its subsidiaries is a party or otherwise that
entitle or will entitle any person to acquire from the Company or any Subsidiary upon the issuance
or sale thereof any Common Shares, Series B Preferred Shares, Series C Preferred Shares, Series D
Preferred Shares, Series E Preferred Shares, any other equity security of the Company or any
Subsidiaries and any security convertible into, or exercisable or exchangeable for, any Common
Shares, Series B Preferred Shares, Series C Preferred Shares Series D Preferred Shares, Series E
Preferred Shares or other such equity security (any Relevant Security). The Shares to be
delivered on the Closing Date and the Additional Closing Date, if any (as hereinafter respectively
defined), have been duly and validly authorized for issuance and sale pursuant to this Agreement
and, when delivered in accordance with this Agreement against payment of the consideration therefor
specified in this Agreement, will be duly and validly issued, fully paid and non-assessable, and
will not have been issued in violation of or subject to any preemptive or similar rights that
entitle or will entitle any person to acquire any Relevant Security from the Company or any
Subsidiary upon issuance or sale of Shares in the Offering. The Common Shares, Series B Preferred
Shares, Series C Preferred Shares, Series D Preferred Shares and Series E Preferred Shares conform
in all material respects to the descriptions thereof contained in the Registration Statement, the
General Disclosure Package and the Prospectus, and such description conforms to the rights set
forth in the instruments defining the same. The Firm Shares and the Additional Shares conform in
all material respects to the descriptions thereof contained in the Registration Statement, the
General Disclosure Package and the Prospectus. The forms of share certificate to be used to
evidence the Shares will be in due and proper form and will comply with all applicable legal
requirements. Except as disclosed in or specifically contemplated by the General Disclosure
Package and the Prospectus, and except for restricted Common Shares or options to purchase Common
Shares to be granted to the Companys non-employee trustees pursuant to the Companys 2007 Equity
Incentive Plan and Common Shares to be issued in respect thereof, there are no shares of
8
beneficial interest of the Company reserved for any purpose and there are no outstanding
securities convertible into or exchangeable for any shares of beneficial interest of the Company
and neither the Company nor any Subsidiary has outstanding options to purchase, or any preemptive
rights or other rights to subscribe for or to purchase, or any contracts or commitments to issue or
sell, any Relevant Security. The holders of the Shares will not be subject to liability by reason
of being such holders.
(l) The Subsidiaries listed on Exhibit A hereto are the only subsidiaries of the
Company within the meaning of Rule 405. Except for the Subsidiaries and Atlantic-EPR I, a Delaware
general partnership (in which the Company owns a 20% interest), Atlantic-EPR II, a Delaware general
partnership (in which the Company owns a 20% interest) and New Roc Associates L.P., a New York
limited partnership (in which the Company owns the general partnership interest and 70.4% of the
limited partnership interest), the Company owns no ownership or other beneficial interest, directly
or indirectly, in any corporation, partnership, joint venture or other business entity. All of the
issued shares of capital stock of or other ownership interest in each of the Subsidiaries have been
duly and validly authorized and issued and are fully paid and non-assessable and, except as set
forth on Exhibit A hereto, are owned directly or indirectly by the Company free and clear
of all liens, encumbrances, equities or claims.
(m) Each of the Company and the Subsidiaries has been duly organized and validly exists as a
real estate investment trust, corporation, business trust, partnership or limited liability company
in good standing under the laws of its jurisdiction of organization. Each of the Company and the
Subsidiaries is duly qualified to do business and is in good standing as a foreign trust,
corporation, partnership or limited liability company in each jurisdiction in which the character
or location of its properties (owned, leased or licensed) or the nature or conduct of its business
makes such qualification necessary, except for those failures to be so qualified or in good
standing which could not reasonably be expected to (individually or when aggregated with other such
instances) have a material adverse effect on (i) the earnings, assets, business, condition
(financial or otherwise), results of operations, shareholders equity, properties, affairs or
prospects of the Company and the Subsidiaries, taken as a whole; (ii) the long-term debt, shares of
beneficial interest or capital stock of the Company and any of its Subsidiaries, taken as a whole;
or (iii) the Offering or consummation of any of the other transactions contemplated by this
Agreement, the Registration Statement and the Prospectus (a Material Adverse Effect).
Each of the Company and the Subsidiaries has all requisite power and authority, and all necessary
consents, approvals, authorizations, orders, registrations, qualifications, licenses and permits
(collectively, the Consents) of and from all public, regulatory or governmental agencies
and bodies and third parties, foreign and domestic, to own, hold, lease and operate its properties
and conduct its business as it is now being conducted and as described in the Registration
Statement, the General Disclosure Package and the Prospectus, and each such Consent is valid and in
full force and effect, and neither the Company nor any of the Subsidiaries has received notice of
any investigation or proceedings which could result in the revocation of any such Consent. Each of
the Company and the Subsidiaries is in compliance with all applicable laws, rules, regulations,
ordinances and directives, except where failure to be in compliance could not reasonably be
expected to have a Material Adverse Effect. No Consent
9
contains a materially burdensome restriction not adequately disclosed in the Registration
Statement, the General Disclosure Package and the Prospectus. Neither the Company nor any
Subsidiary is in violation of its declaration of trust, certificate or articles of incorporation,
by-laws, certificate of formation, limited liability company agreement, partnership agreement or
any other organizational document. The Company and Subsidiaries are not in default (or with notice
or lapse of time, or both, would be in default) under any indenture, mortgage, deed of trust,
voting trust agreement, loan agreement, bond, debenture, note agreement or evidence of
indebtedness, lease, contract or other agreement or instrument to which they are a party or by
which they or any of their properties or other assets are bound, violation of which would
individually or in the aggregate have a Material Adverse Effect, and no other party under any such
agreement or instrument to which the Company or the Subsidiaries are a party is, to the knowledge
of the Company, in default (or with notice or lapse of time, or both, would be in default) in any
material respect thereunder. To the knowledge of the Company, no liability (financial or
otherwise) exists for the Company or the Subsidiaries, except for those liabilities which would not
have a Material Adverse Effect.
(n) Except as described in the General Disclosure Package and the Prospectus, there is no
legal, governmental or regulatory proceeding or other litigation (including but not limited to
routine litigation) to which the Company or any of the Subsidiaries or any of their respective
officers or trustees/directors is a party or of which any property or operations of the Company or
any of the Subsidiaries is the subject which, individually or in the aggregate, if determined
adversely to the Company or any of the Subsidiaries (or any of their respective officers or
trustees/directors), could reasonably be expected to have a Material Adverse Effect; to the best of
the Companys knowledge, no such proceeding or litigation is threatened or contemplated by any
legal, governmental or regulatory authority or other third party, foreign or domestic; and the
defense of all such proceedings and litigation against or involving the Company or any of the
Subsidiaries (or any of their respective officers or trustees/directors) could not reasonably be
expected to have a Material Adverse Effect.
(o) The consolidated financial statements of the Company, included or incorporated by
reference, in the Registration Statement, the General Disclosure Package and the Prospectus,
together with the related schedules and notes, as well as those financial statements, schedules or
notes of any other entity included therein, present fairly the financial position as of the dates
indicated and the results of operations, changes in shareholders equity and cash flows for the
periods therein specified of the Company and its consolidated Subsidiaries or of the respective
entity or entities or group presented therein; except as otherwise stated in the Registration
Statement, the General Disclosure Package and the Prospectus, said financial statements, notes and
schedules have been prepared in conformity with generally accepted accounting principles
(GAAP) applied on a consistent basis throughout the periods involved and present fairly
the information required to be stated therein. The other financial and statistical information and
data included or incorporated by reference in the Registration Statement, the General Disclosure
Package and the Prospectus present fairly the information included therein and have been prepared
on a basis consistent with that of the financial statements that are included or incorporated by
reference in the Registration Statement, the General Disclosure
10
Package and the Prospectus and the books and records of the respective entities presented
therein, and comply with the applicable requirements of Regulation G of the Commission.
(p) Any pro forma or as adjusted financial information and the related notes thereto included
or incorporated by reference in the Registration Statement, the General Disclosure Package and the
Prospectus present fairly the information shown therein, have been prepared in accordance with the
Commissions rules and the guidelines of the American Institute of Certified Public Accountants
with respect to pro forma information and have been properly compiled on the bases described
therein, and the assumptions used in the preparation thereof are, in the opinion of the Company,
reasonable and the adjustments used therein are appropriate to give effect to the transactions and
circumstances referred to therein. All historical financial statements and information and all pro
forma financial statements and information required by the Securities Act, the Exchange Act and the
Rules and Regulations are included, or incorporated by reference, in the Registration Statement,
the General Disclosure Package and the Prospectus.
(q) The statistical and market-related data included or incorporated by reference in the
Registration Statement, the General Disclosure Package and the Prospectus are based on or derived
from sources which the Company reasonably and in good faith believes are reliable and accurate, and
such data agree with the sources from which they are derived.
(r) There are no contracts or other documents (including, without limitation, any voting
agreement), which are required to be described in the Registration Statement, the General
Disclosure Package and the Prospectus or filed as exhibits to the Registration Statement by the
Securities Act, the Exchange Act or the Rules and Regulations and which have not been so described
or filed. All of the contracts to which any of the Company or the Subsidiaries is a party and
which are material to the business and operations of the Company and the Subsidiaries, taken as a
whole, (i) have been duly authorized, executed and delivered by such entity, constitute valid and
binding agreements of such entity and are enforceable against such entity in accordance with the
terms thereof, except as such enforcement may be limited by (A) bankruptcy, insolvency,
reorganization or similar other laws affecting creditors rights generally and (B) general equity
principles and limitations on the availability of equitable relief, or (ii) in the case of any
contract to be executed on or before the Closing Date, will on the Closing Date be duly authorized,
executed and delivered by the Company and/or a Subsidiary, and constitute valid and binding
agreements of such entity enforceable against each entity in accordance with the terms thereof,
except as such enforcement may be limited by (A) bankruptcy, insolvency, reorganization or similar
other laws affecting creditors rights generally and (B) general equity principles and limitations
on the availability of equitable relief.
(s) The Common Shares, Series B Preferred Shares, Series C Preferred Shares, Series D
Preferred Shares and Series E Preferred Shares are registered pursuant to Section 12(b) of the
Exchange Act and the outstanding Common Shares, Series B Preferred Shares, Series C Preferred
Shares, Series D Preferred Shares and Series E Preferred Shares are listed on The New York Stock
Exchange and the Company has taken no action designed to, or likely to have the effect of,
terminating the registration of the Common Shares, Series B
11
Preferred Shares, Series C Preferred Shares, Series D Preferred Shares or Series E Preferred
Shares under the Exchange Act or de-listing the Common Shares, Series B Preferred Shares, Series C
Preferred Shares, Series D Preferred Shares or Series E Preferred Shares from The New York Stock
Exchange, nor has the Company received any notification that the Commission or The New York Stock
Exchange is contemplating terminating such registrations or listings. The Shares have been
approved for listing on The New York Stock Exchange, subject to official notice of issuance.
(t) Except as disclosed in the Registration Statement, the General Disclosure Package and the
Prospectus, no holder of securities of the Company has any registration or similar rights to
require registration of any debt or equity security of the Company as part or on account of, or
otherwise in connection with, the sale of the Shares contemplated hereby, and any such rights so
disclosed have either been fully complied with by the Company or effectively waived by the holders
thereof, and any such waivers remain in full force and effect.
(u) Neither the Company nor any of its affiliates has taken, nor will any of them take,
directly or indirectly, any action resulting in a violation of Regulation M under the Exchange Act,
or that is designed to cause or result in, or which might reasonably be expected to constitute,
cause or result in, the stabilization or manipulation of the price of any security to facilitate
the sale or resale of the Shares.
(v) The Company has not prior to the date hereof offered or sold any securities which would be
integrated with the offer and sale of the Shares pursuant to the Registration Statement. Except
as described in the Registration Statement, the General Disclosure Package and the Prospectus (and
pursuant to the Companys dividend reinvestment plan, as in effect on the date hereof), the Company
has not sold or issued any Relevant Security during the six-month period preceding the date of the
Prospectus, including but not limited to any sales pursuant to Rule 144A or Regulation D or S under
the Securities Act, other than Common Shares issued pursuant to employee benefit plans, qualified
stock option plans or the employee compensation plans or pursuant to outstanding options, rights or
warrants as described in the General Disclosure Package and the Prospectus.
(w) There are no direct or indirect business relationships or related party transactions
(including those contemplated by Item 404 of Regulation S-K under the Securities Act) involving the
Company or any subsidiary or affiliate or any other person required by the Securities Act, the
Exchange Act, the Rules and Regulations or the rules and regulations of The New York Stock Exchange
or the FINRA (as defined below) to be described in the Registration Statement, the General
Disclosure Package or the Prospectus which is not so described or is not described as required.
There are no outstanding loans, advances (except normal advances for business expenses in the
ordinary course of business) or guarantees of indebtedness by the Company to or for the benefit of
any of the officers, directors or trustees of the Company or its subsidiaries which are required to
by the Securities Act, the Exchange Act or the Rules and Regulations to be described in the
Registration Statement, the General Disclosure Package or the Prospectus which are not so described
or not described as required. Neither the
12
Company nor any of its subsidiaries has, in violation of the Sarbanes-Oxley Act of 2002 (the
Sarbanes-Oxley Act), directly or indirectly, extended or maintained credit, arranged for
the extension of credit, or renewed an extension of credit, in the form of a personal loan to or
for any director, trustee or executive officer (or any family member or affiliate thereof) of the
Company or any Subsidiary.
(x) The Company and its Subsidiaries (i) make and keep accurate books and records, and (ii)
maintain a system of internal accounting controls sufficient to provide reasonable assurances that
(A) transactions are executed in accordance with managements 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 managements general or specific
authorization and (D) the recorded accounting for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any differences. The Company
has established and maintains disclosure controls and procedures (as such term is defined in Rule
13a-14 and 15d-14 under the Exchange Act) that (i) are designed to ensure that material information
relating to the Company and its Subsidiaries is made known to the Companys Chief Executive Officer
and its Chief Financial Officer, (ii) are effective to perform the functions for which they were
established, and (iii) have been evaluated for effectiveness as of the end of the period covered by
the Companys most recent Annual Report on Form 10-K filed with the Commission. The principal
executive officers (or their equivalents) and principal financial officers (or their equivalents)
of the Company have made all certifications required by Sections 302 and 906 of the Sarbanes-Oxley
Act and any related rules and regulations of the Commission, and the statements contained in any
such certification were correct when made. Based on an evaluation of its disclosure controls and
procedures, the Company is not aware of (i) any significant deficiency in the design or operation
of internal controls which could adversely affect the Companys ability to record, process,
summarize and report financial data or any material weakness in internal controls; or (ii) any
fraud, whether or not material, that involves management or other employees who have a significant
role in the Companys internal controls. Since the date of the most recent evaluation of such
disclosure controls and procedures, there have been no significant changes in internal controls or
in other factors that could significantly affect internal controls, including any corrective
actions with regard to significant deficiencies and material weaknesses.
(y) The conditions for use of Form S-3, as set forth in the General Instructions thereto, have
been satisfied. During the period of at least the last 24 calendar months prior to the date of
this Agreement, the Company has timely filed with the Commission all documents and other material
required to be filed pursuant to Sections 13, 14 and 15(d) under the Exchange Act. During the
period of at least the last 36 calendar months preceding the filing of the Registration Statement,
the Company has filed all reports required to be filed pursuant to Sections 13, 14 and 15(d) under
the Exchange Act. Immediately preceding the filing of the Registration Statement, the aggregate
market value of the Companys voting and non-voting common equity held by non-affiliates of the
Company was equal to or greater than $75 million.
13
(z) Each of the Company and the Subsidiaries is not and, at all times up to and including
consummation of the transactions contemplated by this Agreement, the Registration Statement and the
Prospectus, and after giving effect to the application of the net proceeds of the Offering, will
not be, subject to registration as an investment company under the Investment Company Act of
1940, as amended (the 40 Act), and is not and will not be an entity controlled by an
investment company within the meaning of such act.
(aa) The Company and the Subsidiaries have good and marketable title in fee simple to, or a
valid and enforceable ground leasehold interest in, all real property and good and marketable title
to all personal property owned by them, in each case free and clear of all liens, encumbrances and
defects except such as are described in the Registration Statement, the General Disclosure Package
and the Prospectus or such as do not (individually or in the aggregate) materially affect the value
of such property or interfere with the use made or proposed to be made of such property by the
Company and the Subsidiaries; and any real property and buildings held under lease or sublease by
the Company and the Subsidiaries are held by them under valid, subsisting and enforceable leases
with such exceptions as are not material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and the Subsidiaries. Neither the Company nor
any of the Subsidiaries has received any notice of any claim adverse to its ownership or leasing of
any real or personal property or of any claim against the continued possession of any real
property, whether owned or held under lease or sublease by the Company or any of the Subsidiaries
that has had or would reasonably be expected to have a Material Adverse Effect. All liens,
charges, encumbrances, claims or restrictions on or affecting any of the properties or the assets
of the Company and the Subsidiaries which are required to be disclosed in the General Disclosure
Package and the Prospectus are disclosed therein. No tenant under any of the leases pursuant to
which the Company or any Subsidiary leases its property has an option or right of first refusal to
purchase the premises demised under such lease, the exercise of which would have a Material Adverse
Effect. The use and occupancy of each of the properties of the Company and the Subsidiaries comply
in all material respects with all applicable codes and zoning laws and regulations. The Company
and the Subsidiaries have no knowledge of any pending or threatened condemnation or zoning change
that will in any material respect affect the size of, use of, improvement of, construction on, or
access to any of the properties of the Company or the Subsidiaries. The Company and the
Subsidiaries have no knowledge of any pending or threatened proceeding or action that will in any
manner materially affect the size of, use of, improvements or construction on, or access to any of
the properties of the Company or the Subsidiaries. The property purchase agreements described in
the General Disclosure Package and the Prospectus have been duly authorized, executed and delivered
by the Company, have been executed by the other parties thereto, and constitute binding obligations
of the Company. The descriptions of the property purchase agreements contained in the General
Disclosure Package and the Prospectus are accurate in all material respects.
(bb) The Company and each of the Subsidiaries owns or possesses adequate right to use all
patents, patent applications, trademarks, service marks, trade names, trademark registrations,
service mark registrations, copyrights, licenses, formulae, customer lists,
14
and know-how and other intellectual property (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or procedures) necessary for
the conduct of their respective businesses as being conducted and as described in the Registration
Statement, the General Disclosure Package and Prospectus and have no reason to believe that the
conduct of their respective businesses does or will conflict with, and have not received any notice
of any claim of conflict with, any such right of others. To the best of the Companys knowledge,
all material technical information developed by and belonging to the Company which has not been
patented has been kept confidential. Neither the Company nor any of its Subsidiaries has granted
or assigned to any other person or entity any right to manufacture, have manufactured, assemble or
sell the current products and services of the Company or those products and services described in
the Registration Statement, the General Disclosure Package and the Prospectus. There is no
infringement by third parties of any such Intellectual Property; there is no pending or, to the
Companys knowledge, threatened action, suit, proceeding or claim by others challenging the
Companys or any Subsidiarys rights in or to any such Intellectual Property, and the Company is
unaware of any facts which would form a reasonable basis for any such claim; and there is no
pending or, to the Companys knowledge, threatened action, suit, proceeding or claim by others that
the Company infringes or otherwise violates any patent, trademark, copyright, trade secret or other
proprietary rights of others, and the Company is unaware of any other fact which would form a
reasonable basis for any such claim.
(cc) Each of the Company and the Subsidiaries has accurately prepared and timely filed all
federal, state and other tax returns that are required to be filed by it and has paid or made
provision for the payment of all taxes, assessments, governmental or other similar charges,
including without limitation, all sales and use taxes and all taxes which the Company and each of
the Subsidiaries is obligated to withhold from amounts owing to employees, creditors and third
parties, with respect to the periods covered by such tax returns (whether or not such amounts are
shown as due on any tax return). No deficiency assessment with respect to a proposed adjustment of
the Companys or any of the Subsidiaries Federal, state, or other taxes is pending or, to the best
of the Companys knowledge, threatened. There is no tax lien, whether imposed by any federal,
state or other taxing authority, outstanding against the assets, properties or business of the
Company or any of the Subsidiaries. To the knowledge of the Company, there are no tax returns of
the Company or any of the Subsidiaries that are currently being audited by state, local or Federal
taxing authorities or agencies which would have a Material Adverse Effect.
(dd) Neither the Company, any of the Subsidiaries nor, to the Companys knowledge, any of its
employees or agents has at any time during the last five years (i) made, on behalf of the Company,
any unlawful contribution to any candidate for foreign office, or failed to disclose fully any
contribution in violation of law or (ii) made any payment to any federal or state governmental
officer or official, or other person charged with similar public or quasi-public duties, other than
payments required or permitted by the laws of the United States of any jurisdiction thereof.
15
(ee) No labor disturbance by the employees of the Company or any of the Subsidiaries exists
or, to the best of the Companys knowledge, is imminent and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its or any Subsidiarys principal
suppliers, manufacturers, customers or contractors, which, in either case, could reasonably be
expected to have a Material Adverse Effect.
(ff) No prohibited transaction (as defined in Section 406 of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and published interpretations
thereunder (ERISA), or Section 4975 of the Internal Revenue Code of 1986, as amended from
time to time (the Code), or accumulated funding deficiency (as defined in Section 302
of ERISA) or any of the events set forth in Section 4043(b) of ERISA (other than events with
respect to which the 30-day notice requirement under Section 4043 of ERISA has been waived) has
occurred with respect to any employee benefit plan which could reasonably be expected to have a
Material Adverse Effect; each employee benefit plan is in compliance in all material respects with
applicable law; including ERISA (to the extent applicable) and the Code; the Company has not
incurred and does not expect to incur liability under Title IV of ERISA with respect to the
termination of, or withdrawal from any pension plan; and each pension plan (as defined in
ERISA) for which the Company 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 could cause the loss of such qualification.
(gg) Except as would not, singularly or in the aggregate, have a Material Adverse Effect, (i)
to the Companys knowledge, there does not exist on any of the properties described in the General
Disclosure Package and the Prospectus any Hazardous Materials (as hereinafter defined) in unlawful
quantities, (ii) to the Companys knowledge, there has not occurred on or from such properties any
unlawful spills, releases, discharges or disposal of Hazardous Materials, (iii) the Company and the
Subsidiaries have not failed to comply with all applicable local, state and Federal laws,
regulations, ordinances and administrative and judicial orders relating to pollution or protection
of human health, the environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including, without limitation, laws
and regulations relating to the release or threatened release of Hazardous Materials or to the
generation, manufacture, processing, recycling, distribution, use, treatment, sale, storage,
disposal, transport or handling of Hazardous Materials (collectively, Environmental
Laws), (iv) the Company and its Subsidiaries have (to the extent not maintained by the
applicable tenants) all permits, authorizations and approvals required under any applicable
Environmental Laws and all are in compliance with their requirements, (v) there are no pending or,
to the Companys knowledge, threatened administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or violation, investigation or
proceedings pursuant to any Environmental Law against the Company or any of its Subsidiaries, and
(vi) to the Companys knowledge, there are no events or circumstances that might 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
16
agency, against the Company, any Subsidiary or any of their assets relating to any Hazardous
Materials or the violation of any Environmental Laws.
As used herein, Hazardous Material shall include, without limitation, any flammable
explosives, radioactive materials, oil, petroleum, petroleum products, hazardous materials,
hazardous wastes, hazardous or toxic substances, asbestos or any material as defined by any
environmental laws, including, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (42 U.S.C. Section 9601, et seq.) (CERCLA), the
Hazardous Materials Transportation Act, as amended (49 U.S.C. Section 1801, et seq.), the Resource
Conservation and Recovery Act, as amended (42 U.S.C. Section 6901, et seq.), and in the regulations
adopted pursuant to each of the foregoing or by any Federal, state or local governmental authority
having jurisdiction over the properties as described in the Prospectus.
All of the properties of the Company and the Subsidiaries have been, and it is contemplated
that all future acquisitions will be, subjected to a Phase I or similar environmental assessment
(which generally includes a site inspection, interviews and a records review, but no subsurface
sampling). These assessments and follow-up investigations, if any, of the properties (including,
as appropriate, asbestos, radon and lead surveys, additional public record review, subsurface
sampling and other testing), of the properties have not revealed any environmental liability that
the Company believes would have a Material Adverse Effect. The Company has not agreed to assume,
undertake or provide indemnification (except as may extend to lenders to the Company who finance
the acquisition of real property or the refinancing thereof) for any liability of any other person
under any environmental law, including any obligation for cleanup or remedial action, except as
could not reasonably be expected to have a Material Adverse Effect.
(hh) Commencing with the Companys taxable year ended December 31, 1997, the Company has been,
and upon the sale of the Shares will continue to be, organized and operated in conformity with the
requirements for qualification and taxation as a real estate investment trust (a REIT)
under Sections 856 through 860 of the Code. The proposed method of operation of the Company as
described in the General Disclosure Package and the Prospectus will enable the Company to continue
to operate in a manner which would permit it to qualify as a REIT under the Code. The Company has
no present intention of changing its operations or engaging in activities which would cause it to
fail to qualify, or make economically undesirable its continued qualification, as a REIT.
(ii) Title insurance in favor of the Company and the Subsidiaries is maintained with respect
to each of the properties described in the General Disclosure Package and the Prospectus in an
amount at least equal to the cost of acquisition of such property.
(jj) Except as disclosed in the Registration Statement, the General Disclosure Package and the
Prospectus and any amendment or supplement thereto, there are no mortgages or deeds of trust
encumbering any of the properties described in the General Disclosure Package and the Prospectus.
The mortgages encumbering the properties are not
17
convertible into any equity securities of the Company, nor does the Company or any of the
Subsidiaries hold a participating interest therein and, except as disclosed in the Registration
Statement, the General Disclosure Package and the Prospectus and any amendment or supplement
thereto, such mortgages are not cross defaulted to or cross-collateralized by any party other than
the Company and the Subsidiaries.
(kk) The Company has and maintains, or its tenants have and maintain, property and casualty
insurance in favor of the Company and the Subsidiaries with respect to such entities and each of
the properties owned, directly or indirectly, by the Company, in an amount and on such terms as is
reasonable and customary for the businesses of the type proposed to be conducted by the Company and
the Subsidiaries. Neither the Company nor any of the Subsidiaries has received from any insurance
company written notice of any material defects or deficiencies affecting the insurability of any
such properties.
(ll) Except as otherwise disclosed in or incorporated by reference in the Prospectus, there
are no material outstanding loans or advances or material guarantees of indebtedness by the Company
or any of the Subsidiaries to or for the benefit of any of the officers, trustees or directors of
the Company or any of the Subsidiaries or any of the members of the families of any of them.
(mm) To the knowledge of the Company, each of the properties described in the General
Disclosure Package and the Prospectus is in compliance with all presently applicable provisions of
the Americans with Disabilities Act, except for any failures to comply which would not, singly or
in the aggregate, result in a Material Adverse Effect.
(nn) The Company has not incurred any liability for any finders fees or similar payments in
connection with the transactions herein contemplated except as may otherwise exist with respect to
the Underwriters pursuant to this Agreement.
(oo) No person who is a trustee of the Company or is an officer of the Company, and to the
Companys knowledge, no person who in the aggregate beneficially owns 5% or more of the Companys
Common Shares (a Beneficial Owner), is a member of the Financial Industry Regulatory
Authority (FINRA), a controlling stockholder of a member, or an affiliate of a member, or
of an underwriter or related person of a member or underwriter, in each case with respect to any
proposed offering under this Agreement. No beneficial owner of the Companys unregistered
securities acquired within the 12 months prior to the filing of the Registration Statement, or any
amendments thereto, or to the filing of the General Disclosure Package, the Prospectus, or any
amendment or supplement thereto, has any direct or indirect affiliation or association with any
FINRA member.
(pp) The Company is in compliance with all presently applicable provisions of the
Sarbanes-Oxley Act and the rules and regulations promulgated thereunder and is actively taking
steps to ensure that it will be in compliance with other applicable provisions of the
Sarbanes-Oxley Act upon the effectiveness of such provisions.
18
Any certificate signed by or on behalf of the Company and delivered to the Underwriters or to
counsel for the Underwriters shall be deemed to be a representation and warranty by the Company to
the Underwriters as to the matters covered thereby.
2. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties, covenants and agreements herein
contained, but 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 Company at a purchase price per share of $30.161, the number of Firm Shares
set forth in Schedule I opposite the name of such Underwriter, plus any additional number
of Firm Shares which such Underwriter may become obligated to purchase pursuant to the provisions
of Section 2(e) hereof.
(b) Payment of the purchase price for, and delivery of (including any certificates
representing), the Firm Shares shall be made at the office of Dechert LLP, 1095 Avenue of the
Americas, New York, New York 10036 (Underwriter Counsel), or at such other place as shall
be agreed upon by the Representative and the Company, at 10:00 A.M., New York City time, on the
third business day (as permitted under Rule 15c6-1 under the Exchange Act) (unless postponed in
accordance with the terms of this Agreement) following the effective date of this Agreement or such
other time not later than ten business days after such date as shall be agreed upon by the
Representative and the Company (such time and date of payment and delivery being herein called the
Closing Date). It is understood that each Underwriter has authorized the Representative,
for its own account, to accept delivery of, receipt for, and make payment of the purchase price for
the Firm Shares and the Additional Shares, if any, which it has agreed to purchase.
Payment of the purchase price for the Firm Shares shall be made by wire transfer in same day
funds to the Company at the bank account designated in writing by the Company at least one business
day prior to the Closing Date, upon delivery of the Firm Shares to the Representative through the
facilities of The Depository Trust Company for the respective accounts of the Underwriters. The
Firm Shares (including the certificates representing the Firm Shares, if any) shall be registered
in such name or names and shall be in such denominations as the Representative may request at least
two business days before the Closing Date. The Company will permit the Representative to examine
and package the certificates representing the Firm Shares, if any, for delivery at least one full
business day prior to the Closing Date.
(c) In addition, on the basis of the representations, warranties, covenants and agreements
herein contained, but subject to the terms and conditions herein set forth, the Company hereby
grants to the Underwriters severally and not jointly, the option to purchase up to 825,000
Additional Shares at the same purchase price per share to be paid by the Underwriters for the Firm
Shares as set forth in this Section 2; provided that the price per share for any Additional
Shares shall be reduced by an amount per share equal to any dividends or distributions declared by
the Company and payable on the Firm Shares but not payable on such Additional Shares. This option
may be exercised at any time and from time to time, in whole or
19
in part on one or more occasions, on or before the thirtieth day following the date of the
Prospectus Supplement, by written notice by the Representative to the Company. Such notice shall
set forth the aggregate number of Additional Shares as to which the option is being exercised and
the date and time, as reasonably determined by the Representative, when the Additional Shares are
to be delivered (any such date and time being herein sometimes referred to as the Additional
Closing Date); provided, however, that the Additional Closing Date shall not
be earlier than the Closing Date nor later than the eighth full business day after the date on
which the option shall have been exercised. If the option is exercised as to all or any portion of
the Additional Shares, each of the Underwriters, acting severally and not jointly, will purchase
its share of the total number of Additional Shares then being purchased proportionate to its share
of the Firm Shares set forth in Schedule I opposite the name of such Underwriter, subject in each
case to such adjustments as the Representative in its sole discretion shall make to eliminate any
sales or purchases of fractional shares.
(d) Payment of the purchase price for, and delivery of (including any certificates
representing), the Additional Shares, if any, shall be made at the office of Underwriter Counsel,
or at such other place as shall be agreed upon by the Representative and the Company, at 10:00
A.M., New York City time, on the Additional Closing Date, or such other time as shall be agreed
upon by the Representative and the Company.
Payment of the purchase price for the Additional Shares shall be made by wire transfer in same
day funds to the Company at the bank account designated in writing by the Company at least one
business day prior to the Additional Closing Date, upon delivery of the Additional Shares to the
Representative through the facilities of The Depository Trust Company for the respective accounts
of the Underwriters. The Additional Shares (including the certificates representing the Additional
Shares, if any) shall be registered in such name or names and shall be in such denominations as the
Representative may request at least two business days before the Additional Closing Date. The
Company will permit the Representative to examine and package the certificates representing the
Additional Shares, if any, for delivery at least one full business day prior to the Additional
Closing Date.
(e) If one of the Underwriters shall fail at the Closing Date or the Additional Closing Date
to purchase the Shares which it is obligated to purchase under this Agreement (the Defaulted
Shares), the Representative shall have the right, within 24 hours thereafter, to make
arrangements for itself, or the non-defaulting Underwriter, or any other Underwriter, to purchase
all, but not less than all, of the Defaulted Shares in such amounts as may be agreed upon and upon
the terms herein set forth; if, however, the Representative shall not have completed such
arrangements within such 24-hour period, then:
(i) if the number of the Defaulted Shares does not exceed 10% of the number of Shares to be
purchased on such date, the non-defaulting Underwriters shall be obligated to purchase the full
amount thereof (in proportion to the number of Firm Shares set forth opposite their respective
names in Schedule I hereto); or
20
(ii) if the number of Defaulted Shares exceeds 10% of the number of Shares to be purchased on
such date, this Agreement, or, with respect to any Additional Closing Date which occurs after the
Closing Date, the obligation of the Underwriters to purchase and of the Company to sell the
Additional Shares to be purchased and sold on the Additional Closing Date, shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 2(e) shall relieve any defaulting Underwriter from
liability in respect of its default.
3. Offering. Upon authorization of the release of the Firm Shares by the
Representative, the Underwriters propose to offer the Shares for sale to the public upon the terms
and conditions set forth in the General Disclosure Package and the Prospectus Supplement.
4. Covenants of the Company. The Company covenants and agrees with each Underwriter
that:
(a) The Company will cause the Prospectus (including any Preliminary Prospectus Supplement and
Prospectus Supplement) to be prepared and filed as required by Section 1(a) hereof (but only if the
Underwriters or Underwriter Counsel have not reasonably objected thereto by notice to the Company
after having been furnished a copy a reasonable time prior to filing) and will notify the
Underwriters promptly of such filing. The Company will prepare a final term sheet (the Final Term
Sheet) reflecting the final terms of the Shares, in form and substance satisfactory to the
Underwriters, and shall file such Final Term Sheet as an issuer free writing prospectus pursuant
to Rule 433 as soon as practicable following the execution of this Agreement; provided that
the Company shall furnish the Underwriters with copies of any such Final Term Sheet a reasonable
amount of time prior to such proposed filing and will not use or file any such document to which
the Underwriters or Underwriter Counsel shall object.
(b) During the period (beginning on the Applicable Time) in which a prospectus relating to the
Shares is required to be delivered under the Securities Act or such date which is 90 days after the
Closing Date, whichever is later, the Company will notify the Underwriters promptly of the time
when any subsequent amendment to the Registration Statement has become effective or any Preliminary
Prospectus Supplement or Prospectus Supplement or other amendment or supplement to the Prospectus
or any Issuer Free Writing Prospectus has been filed, or of any request by the Commission for any
amendment or supplement to the Registration Statement, the Preliminary Prospectus Supplement or the
Prospectus or for additional information. The Company will prepare and file with the Commission,
promptly upon the Underwriters request, any amendments or supplements to the Registration
Statement, the General Disclosure Package or the Prospectus that, in the Underwriters opinion, may
be necessary or advisable in connection with the Underwriters distribution of the Shares; and the
Company will file no Issuer Free Writing Prospectus or any amendment or supplement to the
Registration Statement, the General Disclosure Package or the Prospectus (other than any prospectus
supplement relating to the offering of other securities
21
registered under the Registration Statement or any document required to be filed under the
Exchange Act that upon filing is deemed to be incorporated by reference therein) to which the
Representative or Underwriter Counsel shall reasonably object by notice to the Company after having
been furnished a copy a reasonable time prior to the filing.
(c) The Company will advise the Underwriters, promptly after it shall receive notice or obtain
knowledge thereof, of the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement, of the suspension of the qualification or registration of the Shares
for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding for
any such purpose; and it will promptly use its best efforts to prevent the issuance of any stop
order or to obtain its withdrawal if such a stop order should be issued.
(d) The Company shall comply with the Securities Act, the Exchange Act and the Rules and
Regulations to permit completion of the distribution as contemplated in this Agreement, the
Registration Statement, the General Disclosure Package and the Prospectus. If at any time when a
prospectus relating to the Shares is required to be delivered under the Securities Act or the
Exchange Act in connection with the sales of Shares, any event shall have occurred or condition
shall exist as a result of which it is necessary, in the reasonable opinion of counsel for the
Underwriters or for the Company, to amend the Registration Statement in order that the Registration
Statement 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, to amend
or supplement the Prospectus in order that the Prospectus will not include an untrue statement 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 to amend or supplement the General Disclosure Package or any Limited Use Issuer Free
Writing Prospectus in order that the General Disclosure Package and any Limited Use Issuer Free
Writing Prospectus will not include an untrue statement 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, or if it shall be necessary, in the reasonable opinion of such counsel, at any such
time to amend the Registration Statement or amend or supplement the Prospectus, the General
Disclosure Package or any Limited Use Issuer Free Writing Prospectus in order to comply with the
requirements of the Securities Act, Exchange Act or the Rules and Regulations, the Company will
promptly notify the Underwriters and prepare and file with the Commission (to the extent required
by applicable law), subject to Sections 4(a) and (b), such amendment or supplement (in form and
substance reasonably satisfactory to Underwriter Counsel) as may be necessary to correct such
statement or omission or to make the Registration Statement, the Prospectus, the General Disclosure
Package or any Limited Use Issuer Free Writing Prospectus comply with such requirements. The
Company will use its best efforts to have any amendment to the Registration Statement be declared
effective as soon as possible, and the Company will furnish to the Underwriters and Underwriter
Counsel, without charge, such number of copies of such amendment or supplement as the Underwriters
may reasonably request.
22
(e) The Company will promptly deliver to each of you and Underwriter Counsel a signed copy of
the Registration Statement, as initially filed and all amendments thereto, including all consents
and exhibits filed therewith, and will maintain in the Companys files manually signed copies of
such documents for at least five years after the date of filing. The Company will promptly deliver
to each Underwriter such number of copies of any Issuer Free Writing Prospectus, Preliminary
Prospectus, Preliminary Prospectus Supplement, the Prospectus Supplement, the Prospectus, the
Registration Statement, and all amendments of and supplements to such documents, if any, and all
documents incorporated by reference in the Registration Statement and Prospectus or any amendment
thereof or supplement thereto, as such Underwriter may reasonably request. Prior to 10:00 A.M.,
New York time, on the business day next succeeding the date of this Agreement and from time to time
thereafter, the Company will furnish each Underwriter with copies of the Prospectus in New York
City in such quantities as such Underwriter may reasonably request. If applicable, copies of any
Issuer Free Writing Prospectus and the Preliminary Prospectus, Preliminary Prospectus Supplement,
Prospectus, Registration Statement and General Disclosure Package, 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.
(f) The Company will make generally available to its security holders and to the Underwriters
as soon as practicable, but in any event not later than the end of the fiscal quarter first
occurring after the first anniversary of the date that the Prospectus Supplement is filed pursuant
to Rule 424(b) under the Securities Act, an earnings statement of the Company and the Subsidiaries
(which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and
Regulations (including, at the option of the Company, Rule 158) covering a period of twelve months
beginning on the date that the Prospectus Supplement is filed pursuant to Rule 424(b) under the
Securities Act.
(g) During the period of five years from the Closing Date, the Company will furnish to the
Underwriters copies of all reports or other communications (financial or other) furnished to
security holders or from time to time published or publicly disseminated by the Company, and will
deliver to the Underwriters (i) as soon as they are available, copies of any reports, financial
statements and proxy or information statements furnished to or filed with the Commission or any
national securities exchange on which any class of securities of the Company is listed;
provided, however, that the Company shall not be required to provide the
Underwriters with any such reports that have been filed with the Commission by electronic
transmission pursuant to EDGAR, and (ii) such additional information concerning the business and
financial condition of the Company as the Underwriters may from time to time reasonably request
(such financial information to be on a consolidated basis to the extent the accounts of the Company
and the Subsidiaries are consolidated in reports furnished to its security holders generally or to
the Commission).
(h) The Company will apply the net proceeds from the sale of the Shares as set forth under the
caption Use of Proceeds in the Prospectus.
23
(i) The Company will use its best efforts to list the Shares, subject to official notice of
issuance, on The New York Stock Exchange and maintain the listing of the Shares on the Exchange.
(j) The Company, during the period when the Prospectus is required to be delivered under the
Securities Act or the Exchange Act, will file all documents required to be filed with the
Commission pursuant to the Securities Act, the Exchange Act and the Rules and Regulations within
the time periods required thereby. The Company has given the Underwriters notice of any filings
made pursuant to the Rules and Regulations within 48 hours prior to the Applicable Time; the
Company will give the Underwriters notice of its intention to make any such filing from the
Applicable Time to the Closing Date and, if applicable, each Additional Closing Date, and will
furnish the Underwriters with copies of any such documents a reasonable amount of time prior to
such proposed filing, as the case may be, and will not file or use any such document to which the
Underwriters or Underwriter Counsel shall object.
(k) The Company will not at any time, directly or indirectly, take any action designed to, or
which might reasonably be expected to, cause or result in, or which has constituted or which might
reasonably be expected to constitute, a violation of Regulation M under the Exchange Act, or the
stabilization of the price of its shares of beneficial interest to facilitate the sale or resale of
any of the Shares.
(l) The Company will use its best efforts to continue to meet the requirements to qualify as a
REIT under the Code for each of its taxable years for so long as the board of trustees deems it in
the best interests of the Companys shareholders to remain so qualified.
(m) The Company will not be or become, at any time prior to the expiration of three years
after the date of the Agreement, an investment company, as such term is defined in the 40 Act.
(n) The Company will maintain a transfer agent and, if necessary under the jurisdiction of
formation of the Company, a Registrar for its Common Shares, Series B Preferred Shares, Series C
Preferred Shares, Series D Preferred Shares and Series E Preferred Shares.
(o) The Company will not offer, sell, contract to sell, hypothecate, pledge, grant any option
to purchase or otherwise dispose of, directly or indirectly, or file with the Commission or cause
to be declared effective a registration statement under the Securities Act relating to, any Common
Shares, any other equity security of the Company or any of its subsidiaries on parity with or
senior to the Common Shares (with respect to distribution rights or payments upon the Companys
liquidation, dissolution or winding up), or any securities convertible into, exchangeable or
exercisable for, or that represent the right to receive, any Common Shares or other such equity
security, and will not agree to or publicly disclose the intention to make any such offer, sale,
pledge, grant, disposition or filing, in each case for the period specified below (the Lock-Up
Period), without the prior written consent of the
24
Representative, except for (i) the registration of the Shares and the sale of the Shares
pursuant to this Agreement; (ii) issuances of Common Shares upon the exercise of options or
warrants disclosed as outstanding in or incorporated by reference in the General Disclosure Package
and the Prospectus; and (iii) the issuance of employee stock options not exercisable during the
Lock-Up Period and restricted share awards, in each case pursuant to equity compensation plans
described in the General Disclosure Package and the Prospectus; provided that in the cases
described in clauses (i), (ii) and (iii) above, these transfers be made subject to no further
transfer during the Lock-Up Period. The initial Lock-Up Period will commence on the date hereof
and will continue through and including February 8, 2010, or such earlier date that the
Representative consents to in writing; provided, however, that if (1) during the last 17 days of
the initial Lock-Up Period, the Company releases earnings results or material news or a material
event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period,
the Company announces that it will release earnings results during the 16-day period beginning on
the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended
until the expiration of the 18-day period beginning on the date of the release of the earnings
results or the occurrence of the material news or material event, as applicable, unless the
Representative waives, in writing, such extension. The Company will provide the Representative
with notice of any announcement described in clause (2) of the preceding sentence that gives rise
to an extension of the Lock-Up Period.
(p) The Company will use its best efforts, in cooperation with the Underwriters, to qualify
the Shares for offering and sale under the applicable securities laws of such states and other
jurisdictions (domestic or foreign) as the Representative may designate and to maintain such
qualifications in effect so long as may be required for the distribution of the Shares;
provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify or register as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or registered, or to subject itself
to taxation in respect of doing business in any jurisdiction in which it is not otherwise so
subject. In each jurisdiction in which the Shares have been so qualified or registered, the
Company will file such statements and reports as may be required by the laws of such jurisdiction
to continue such qualification in effect for so long as may be required for the distribution of the
Shares. The Company will promptly advise the Underwriters 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 initiation or threatening of any proceeding for such purpose. The Company will
comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from
time to time in force, so far as necessary to permit the continuance of sales of, or dealings in,
the Shares, as contemplated by the provisions hereof, the Registration Statement, the Prospectus
and the General Disclosure Package.
(q) The Company will use its best efforts to do and perform all things required to be done or
performed under this Agreement by the Company prior to the Closing Date or the Additional Closing
Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Firm
Shares and the Additional Shares.
25
(r) The Company will comply with all effective applicable provisions of the Sarbanes-Oxley
Act.
5. Free Writing Prospectuses. The Company represents and agrees that, unless it
obtains the prior consent of the Representative, and each Underwriter represents and agrees that,
subject to the last sentence of this Section, unless it obtains the prior consent of the Company
and the Representative, it has not made and will not make any offer relating to the Shares that
would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a free
writing prospectus, as defined in Rule 405. Any such free writing prospectus consented to by the
Company and the Representative is hereinafter referred to as a Permitted Free Writing
Prospectus. The Company represents that it has treated and agrees that it will treat each
Permitted Free Writing Prospectus as an issuer free writing prospectus, as defined in Rule 433 of
the Securities Act Rules and Regulations, and has complied and will comply with the requirements of
Rule 433 of the Securities Act Rules and Regulations applicable to any Permitted Free Writing
Prospectus, including timely Commission filing where required, legending and record keeping.
Notwithstanding the foregoing, the Underwriters may use a free writing prospectus that contains no
issuer information (as defined in Rule 433 of the Securities Act Rules and Regulations) that was
not included (including through incorporation by reference) in the Preliminary Prospectus, the
Prospectus or a previously filed Issuer Free Writing Prospectus and, prior to the preparation of
the Final Term Sheet, may use the information with respect to the final terms of the Shares in
communications conveying information relating to the offering to investors.
6. Payment of Expenses. Whether or not the transactions contemplated by this
Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is
terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of
its obligations hereunder, including the following: (i) all expenses in connection with the
preparation, printing and filing of the Registration Statement, any Preliminary Prospectus, any
Issuer Free Writing Prospectus, the General Disclosure Package and the Prospectus and any and all
amendments and supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the fees, disbursements and expenses of the Companys counsel and
accountants in connection with the registration of the Shares under the Securities Act and the
Offering; (iii) the cost of producing this Agreement and any agreement among underwriters, blue sky
survey, closing documents and other instruments, agreements or documents (including any
compilations thereof) in connection with the Offering; (iv) all expenses in connection with the
qualification of the Shares for offering and sale under state securities laws, if required,
including the fees and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with any blue sky survey; (v) the filing fees incident to, and the
fees and disbursements of counsel for the Underwriters in connection with, securing any required
review by the FINRA of the terms of the Offering; (vi) all fees and expenses in connection with the
preparation and filing of the Registration Statement on Form 8-A relating to the Shares and all
fees and expenses in connection with listing the Shares on The New York Stock Exchange; (vii) all
travel expenses of the Companys officers and employees and any other expense of the Company
incurred in connection with attending or
26
hosting meetings with prospective purchasers of the Shares; (viii) any stock transfer taxes
incurred in connection with this Agreement or the Offering; and (ix) the costs and expenses
(including without limitation any damages) associated with the reforming of any contracts for sale
of the Shares made by the Underwriters caused by a breach of the representation contained in
Section 1(d) hereof. The Company also will pay or cause to be paid: (x) the cost of preparing
stock certificates, if any, representing the Shares; (y) the cost and charges of any transfer agent
or registrar for the Shares; and (z) all other costs and expenses incident to the performance of
its obligations hereunder which are not otherwise specifically provided for in this Section 6. It
is understood, however, that except as provided in this Section, and Sections 8, 9 and 11 hereof,
each Underwriter will pay all of its own costs and expenses, including the fees of its counsel and
stock transfer taxes on resale of any of the Shares by such Underwriter. Notwithstanding anything
to the contrary in this Section 6, in the event that this Agreement is terminated pursuant to
Section 7 or 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay all
out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of
counsel to the Underwriters) incurred in connection herewith.
7. Conditions of Each Underwriters Obligations. The obligations of the Underwriters
to purchase and pay for the Firm Shares and the Additional Shares, as provided herein, shall be
subject to the accuracy of the representations and warranties of the Company herein contained, as
of the date hereof, as of the Applicable Time and as of the Closing Date (for purposes of this
Section 7 Closing Date shall refer to the Closing Date for the Firm Shares and any Additional
Closing Date, if different, for the Additional Shares), to the absence from any certificates,
opinions, written statements or letters furnished to you or to Underwriter Counsel pursuant to this
Section 7 of any material misstatement or omission, to the performance by the Company of its
obligations hereunder, and to each of the following additional conditions:
(a) The Registration Statement shall have become effective and all necessary regulatory
approvals shall have been received not later than the Applicable Time, on the date of this
Agreement, or at such later time and date as shall have been consented to in writing by the
Representative; the Prospectus containing information relating to the description of the Shares and
the method of distribution and similar matters shall have been filed with the Commission pursuant
to Rule 424(b) in accordance with Section 4(a) hereof; and, at or prior to the Closing Date no stop
order suspending the effectiveness of the Registration Statement or any post-effective amendment
thereof shall have been issued and no proceedings therefor shall have been initiated or threatened
by the Commission, nor has any state securities authority suspended the qualification or
registration of the Shares for offering or sale in any jurisdiction and any request of the
Commission for additional information (to be included in the Registration Statement, the General
Disclosure Package or the Prospectus or otherwise) shall have been complied with to the
satisfaction of the Underwriters and Underwriter Counsel. Each Issuer Free Writing Prospectus
shall have been timely filed with the Commission under Rule 433 or 164 of the Securities Act Rules
and Regulations (to the extent required by Rule 433 of the Securities Act Rules and Regulations).
27
(b) The Underwriters shall not have advised the Company that the Registration Statement or any
amendment thereto contains an untrue statement of fact that in the opinion of the Underwriters or
Underwriter Counsel is material or omits to state a fact that in the opinion of the Underwriters or
Underwriter Counsel is material and is required to be stated therein or is necessary to make the
statements therein not misleading, that the General Disclosure Package (at the Applicable Time and
at the Closing Date) or the Prospectus, or any amendment or supplement thereto, contains an untrue
statement of fact that in the opinion of the Underwriters or Underwriter Counsel is material or
omits to state a fact that in the opinion of the Underwriters or Underwriter Counsel is material
and is necessary, in the light of the circumstances under which they were made, to make the
statements therein not misleading.
(c) At the Closing Date you shall have received the favorable written opinion of Stinson
Morrison Hecker LLP, counsel for the Company, dated the Closing Date addressed to the Underwriters
substantially in the form attached hereto as Annex I.
(d) All proceedings taken in connection with the sale of the Firm Shares and the Additional
Shares as herein contemplated shall be satisfactory in form and substance to the Representative and
to Underwriter Counsel, and the Underwriters shall have received from Underwriter Counsel a
favorable written opinion, dated as of the Closing Date, with respect to the issuance and sale of
the Shares, the Registration Statement, the General Disclosure Package and the Prospectus and such
other related matters as the Representative may require, and the Company shall have furnished to
Underwriter Counsel such documents as they may reasonably request for the purpose of enabling them
to pass upon such matters.
(e) At the Closing Date, the Underwriters shall have received a certificate of the Chief
Executive Officer and Chief Financial Officer of the Company, dated the Closing Date to the effect
that (i) the condition set forth in subsection (a) of this Section 7 has been satisfied, (ii) as of
the date hereof and as of the Closing Date, the representations and warranties of the Company set
forth in Section 1 hereof are accurate, (iii) as of the Closing Date all agreements, conditions and
obligations of the Company to be performed or complied with hereunder on or prior thereto have been
duly performed or complied with, (iv) the Company and the Subsidiaries have not sustained any
material loss or interference with their respective businesses or properties from fire, flood,
hurricane, accident or other calamity, whether or not covered by insurance, or from any labor
dispute or any legal or governmental proceeding, (v) no stop order suspending the effectiveness of
the Registration Statement or any post-effective amendment thereof has been issued and no
proceedings therefor have been initiated or threatened by the Commission and (vi) subsequent to the
respective dates as of which information is given in the Registration Statement, the General
Disclosure Package and the Prospectus there has not been any Material Adverse Change or Material
Adverse Effect, or any development involving a prospective Material Adverse Change or Material
Adverse Effect, whether or not arising from transactions in the ordinary course of business.
(f) At the time this Agreement is executed and at the Closing Date, you shall have received a
comfort letter from KPMG LLP, independent public accountants for
28
the Company dated as of the date of this Agreement and as of the Closing Date addressed to the
Representative and in form and substance satisfactory to the Underwriters and Underwriter Counsel.
(g) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any amendment thereof), the
General Disclosure Package and the Prospectus and through the Closing, there shall not have been
any material change in the shares of beneficial interest or capital stock (except pursuant to the
Companys dividend reinvestment plan, as in effect on the date hereof, or the exercise of vested
options), or long-term debt of the Company or any of the Subsidiaries or any change or development
involving a change, whether or not arising from transactions in the ordinary course of business, in
the business, condition (financial or otherwise), results of operations, shareholders equity,
properties, affairs or prospects of the Company and the Subsidiaries, taken as a whole, including
but not limited to the occurrence of any fire, flood, explosion or other calamity at any of the
properties owned or leased by the Company or any of its Subsidiaries, the effect of which, in any
such case described above, is, in the reasonable judgment of the Representative, so material and
adverse as to make it impracticable or inadvisable to proceed with the Offering on the terms and in
the manner contemplated in the General Disclosure Package and the Prospectus (exclusive of any
supplement).
(h) Prior to the Closing Date, the Shares shall have been approved for listing, subject to
official notice of issuance, on the Exchange.
(i) Subsequent to the execution and delivery of this Agreement (i) no downgrading or adverse
change shall have occurred in the rating accorded any security of the Company by any nationally
recognized statistical rating organization, as that term is defined by the Commission for purposes
of Rule 436(g)(2) of the Securities Act Rules and Regulations and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with possible negative
implications, its rating of any security of the Company, that, in either event, makes it
impractical or inadvisable, in the Underwriters judgment, to offer or deliver the Shares on the
terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(j) The Company shall have furnished the Underwriters and Underwriter Counsel with such other
certificates, opinions or other documents as they may have reasonably requested.
(k) At the time this Agreement is executed, the Underwriters shall have received lock-up
agreements from each of the executive officers of the Company in the form attached hereto as
Annex II.
If any of the conditions specified in this Section 7 shall not have been fulfilled when and as
required by this Agreement, or if any of the certificates, opinions, written statements or letters
furnished to the Underwriters or to Underwriter Counsel pursuant to this Section 7 shall
29
not be satisfactory in form and substance to the Representative and Underwriter Counsel,
acting reasonably, all obligations of the Underwriters hereunder may be cancelled by the
Representative at, or at any time prior to, the Closing Date and the obligations of the
Underwriters to purchase the Additional Shares may be cancelled by the Representative at, or at any
time prior to, the Additional Closing Date. Notice of such cancellation shall be given to the
Company in writing, or by telephone. Any such telephone notice shall be confirmed promptly
thereafter in writing.
8. Indemnification.
(a) The Company shall indemnify and hold harmless each Underwriter, its affiliates, directors
and officers and each person, if any, who controls any Underwriter within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, against any and all losses, liabilities,
claims, damages and expenses whatsoever as incurred (including but not limited to attorneys fees
and any and all expenses whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all amounts paid in
settlement of any claim or litigation), joint or several, to which they or any of them may become
subject under the Securities Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, as originally filed or any amendment thereof, or any related Preliminary
Prospectus, any Issuer Free Writing Prospectus (including any General Use Issuer Free Writing
Prospectus or Limited Use Issuer Free Writing Prospectus), the General Disclosure Package or the
Prospectus, or in any supplement thereto or amendment thereof, or any issuer information (as
defined in Rule 433 of the Securities Act Rules and Regulations) filed or required to be filed
under Rule 433 of the Securities Act Rules and Regulations, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however, that
the Company will not be liable in any such case to the extent but only to the extent that any such
loss, liability, claim, damage or expense arises out of or is based upon any such untrue statement
or alleged untrue statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of the Underwriters
through the Representative expressly for use therein. The parties agree that such information
provided by or on behalf of the Underwriters through the Representative consists solely of the
material referred to in the second to last sentence of Section 1(b) hereof. This indemnity
agreement will be in addition to any liability which the Company may otherwise have, including but
not limited to other liability under this Agreement.
(b) Each Underwriter shall severally and not jointly indemnify and hold harmless the Company,
each of the trustees and officers of the Company and each other person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
against any losses, liabilities, claims, damages and expenses whatsoever as incurred (including but
not limited to attorneys fees and any and all expenses whatsoever incurred in investigating, preparing or defending against any litigation, commenced
30
or threatened, or any claim whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become subject under the Securities
Act, the Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages or
expenses (or actions in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration Statement, as originally
filed or any amendment thereof, or any related Preliminary Prospectus, any Issuer Free Writing
Prospectus, the General Disclosure Package or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that any such loss, liability,
claim, damage or expense arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of the Underwriters through the
Representative specifically for use therein; provided, however, that in no case
shall any Underwriter be liable or responsible for any amount in excess of the underwriting
discount or commission applicable to the Shares to be purchased by the Underwriters hereunder.
This indemnity will be in addition to any liability which the Underwriters may otherwise have,
including but not limited to other liability under this Agreement. The parties acknowledge and
agree that such information provided by or on behalf of the Underwriters through the Representative
consists solely of the material referred to in the second to last sentence of Section 1(b) hereof.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice
of any claims or the commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party under such subsection, notify each
party against whom indemnification is to be sought in writing of the claim or the commencement
thereof, but the failure so to notify an indemnifying party shall not relieve the indemnifying
party from any liability which it may have under this Section 8. In case any such claim or action
is brought against any indemnified party, and it notifies an indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate, at its own expense in the defense
of such action, and to the extent it may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to assume the defense
thereof with counsel satisfactory to such indemnified party; provided, however,
that counsel to the indemnifying party shall not (except with the written consent of the
indemnified party) also be counsel to the indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense of such indemnified party
or parties unless (i) the employment of such counsel shall have been authorized in writing by one
of the indemnifying parties in connection with the defense of such action, (ii) the indemnifying
parties shall not have employed counsel to have charge of the defense of such action within a
reasonable time after notice of commencement of the action, (iii) the indemnifying party does not
diligently defend the action after assumption of the defense, or (iv) such indemnified party or
parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those
available
31
to one or all of the indemnifying parties (in which case the indemnifying parties shall
not have the right to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the indemnifying parties.
No indemnifying party shall, without the prior written consent of the indemnified parties, effect
any settlement or compromise of, or consent to the entry of judgment with respect to, any pending
or threatened claim, investigation, action or proceeding in respect of which indemnity or
contribution may be or could have been sought by an indemnified party under this Section 8 or
Section 9 hereof (whether or not the indemnified party is an actual or potential party thereto),
unless (x) such settlement, compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such claim, investigation, action or proceeding
and (ii) does not include a statement as to or an admission of fault, culpability or any failure to
act, by or on behalf of the indemnified party, and (y) the indemnifying party confirms in writing
its indemnification obligations hereunder with respect to such settlement, compromise or judgment.
9. Contribution. In order to provide for contribution in circumstances in which the
indemnification provided for in Section 8 hereof is for any reason held to be unavailable from any
indemnifying party or is insufficient to hold harmless a party indemnified thereunder, the Company
and the Underwriters shall contribute to the aggregate losses, claims, damages, liabilities and
expenses of the nature contemplated by such indemnification provision (including any investigation,
legal and other expenses incurred in connection with, and any amount paid in settlement of, any
action, suit or proceeding or any claims asserted, but after deducting in the case of losses,
claims, damages, liabilities and expenses suffered by the Company any contribution received by the
Company from persons, other than the Underwriters, who may also be liable for contribution,
including persons who control the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, officers of the Company who signed the Registration Statement and
trustees of the Company) as incurred to which the Company and the Underwriters may be subject, in
such proportions as is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other hand from the Offering or, if such allocation is not
permitted by applicable law, in such proportion as is appropriate to reflect not only the relative
benefits referred to above but also the relative fault of the Company on the one hand and the
Underwriters on the other hand in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand and the Underwriters
on the other hand shall be deemed to be in the same proportion as (x) the total proceeds from the
Offering (net of underwriting discounts and commissions but before deducting expenses) received by
the Company bears to (y) the underwriting discount or commissions received by the Underwriters, in
each case as set forth in the table on the cover page of the Prospectus. The relative fault of the
Company and of the Underwriters shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company or the Underwriters and the
parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that
32
it would not be just and equitable if contribution pursuant to this Section 9 were determined by
pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by
any other method of allocation which does not take account of the equitable considerations referred
to above in this Section 9. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section 9 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the
provisions of this Section 9, (i) no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any damages which the
Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission and (ii) no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 9,
each person, if any, who controls any of the Underwriters within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the
Underwriters, and each person, if any, who controls the Company within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each trustee of the Company shall have the same rights to
contribution as the Company, subject in each case to clauses (i) and (ii) of the immediately
preceding sentence. The Underwriters respective obligations to contribute pursuant to this
Section 9 are several in proportion to the number of Firm Shares set forth opposite their
respective names in Schedule I hereto and not joint. Any party entitled to contribution
will, promptly after receipt of notice of commencement of any action, suit or proceeding against
such party in respect of which a claim for contribution may be made against another party or
parties, notify each party or parties from whom contribution may be sought, but the omission to so
notify such party or parties shall not relieve the party or parties from whom contribution may be
sought from any obligation it or they may have under this Section 9 or otherwise.
10. Survival of Representations and Agreements. All representations and warranties,
covenants and agreements of the Underwriters and the Company contained in this Agreement or in
certificates of officers of the Company or any Subsidiary submitted pursuant hereto, including the
agreements contained in Section 6, the indemnity agreements contained in Section 8 and the
contribution agreements contained in Section 9, shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Underwriters or any controlling person
thereof or by or on behalf of the Company, any of its officers and trustees or any controlling
person thereof, and shall survive delivery of and payment for the Shares to and by the
Underwriters. The representations and agreements contained in Sections 1, 5, 6, 8, 9, 10, 11 and
12 through 18, inclusive, hereof shall survive any termination of this Agreement, including
termination pursuant to Section 11 hereof.
33
11. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective upon the execution of this Agreement by the parties
hereto. Notwithstanding any termination of this Agreement, the provisions of this Section 11 and
of Sections 1, 5, 6, 8, 9, 10 and 12 through 18, inclusive, shall be in full force and effect at
all times after the execution hereof.
(b) The Representative shall have the right to terminate this Agreement at any time prior to
the Closing Date or to terminate the obligation, if any, of the Underwriters to purchase the
Additional Shares at any time prior to the Additional Closing Date, as the case may be, if (A)
there has been, since the time of execution of this Agreement or since the respective dates as of
which information is given in the General Disclosure Package and the Prospectus (exclusive of any
supplement thereto), any material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company and the Subsidiaries considered
as one enterprise, whether or not arising in the ordinary course of business, (B) any domestic or
international event or act or occurrence has materially disrupted, or in the opinion of the
Representative will in the immediate future materially disrupt, the market for the Companys
securities or securities in general; or (C) if trading in any of the Companys securities, or if
trading on The New York Stock Exchange generally, shall have been suspended or been made subject to
material limitations, or minimum or maximum prices for trading shall have been fixed, or maximum
ranges for prices for securities shall have been required, on The New York Stock Exchange or by
order of the Commission or any other governmental authority having jurisdiction; or (D) if a
banking moratorium has been declared by any state or federal authority or if any material
disruption in commercial banking or securities settlement or clearance services shall have
occurred; or (E) any downgrading shall have occurred in the Companys corporate credit rating or
the rating accorded the Companys debt securities or preferred stock by any nationally recognized
statistical rating organization (as defined for purposes of Rule 436(g) under the Securities Act)
or if any such organization shall have publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any of the Companys debt securities; or (F) (i)
if there shall have occurred any outbreak or escalation of hostilities or acts of terrorism
involving the United States or there is a declaration of a national emergency or war by the United
States or (ii) if there shall have been any other calamity or crisis or any change in political,
financial or economic conditions if the effect of any such event in (i) or (ii), in the judgment of
the Representative, makes it impracticable or inadvisable to proceed with the offering, sale and
delivery of the Firm Shares or the Additional Shares, as the case may be, on the terms and in the
manner contemplated by the General Disclosure Package and the Prospectus.
(c) Any notice of termination pursuant to this Section 11 shall be in writing.
(d) If this Agreement shall be terminated pursuant to any of the provisions hereof, or if the
sale of the Shares provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth herein is not satisfied or because of
34
any refusal, inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof, the Company will, subject to demand by the Representative,
reimburse the Underwriters for all out-of-pocket expenses (including the fees and expenses of their
counsel), incurred by the Underwriters in connection herewith.
12. Notices. All communications hereunder, except as may be otherwise specifically
provided herein, shall be in writing, and:
(a) if sent to any Underwriter, shall be mailed, delivered, or faxed and confirmed in writing,
to the Representative c/o J.P. Morgan Securities Inc., 383 Madison Avenue, New York, NY 10179 (fax:
(212) 622-8358), Attention: Equity Syndicate Desk, with a copy to Underwriter Counsel at Dechert
LLP, 1095 Avenue of the Americas, New York, New York 10036 (fax: (212) 698-3599), Attention: Bonnie
Barsamian, Esq.;
(b) if sent to the Company, shall be mailed, delivered, or faxed and confirmed in writing to
the Company and its counsel at the addresses set forth in the Registration Statement, Attention:
Chief Executive Officer.
Any such notices and other communications shall take effect at the time of receipt thereof.
13. Parties. This Agreement shall inure solely to the benefit of, and shall be binding
upon, the Underwriters and the Company and the controlling persons, directors, trustees, officers,
employees and agents referred to in Sections 8 and 9 hereof, and their respective successors and
assigns, and no other person shall have or be construed to have any legal or equitable right,
remedy or claim under or in respect of or by virtue of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended to be for the sole
and exclusive benefit of the parties hereto and said controlling persons and their respective
successors, officers, directors, trustees, employees, agents, heirs and legal representatives, and
it is not for the benefit of any other person, firm or corporation. The term successors and
assigns shall not include a purchaser, in its capacity as such, of Shares from the Underwriters.
14. Governing Law and Jurisdiction; Waiver of Jury Trial. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The Company
irrevocably (a) submits to the jurisdiction of any court of the State of New York or the United
States District Court for the Southern District of the State of New York for the purpose of any
suit, action, or other proceeding arising out of this Agreement, or any of the agreements or
transactions contemplated by this Agreement, the Registration Statement and the Prospectus (each, a
Proceeding), (b) agrees that all claims in respect of any Proceeding may be heard and
determined in any such court, (c) waives, to the fullest extent permitted by law, any immunity from
jurisdiction of any such court or from any legal process therein, (d) agrees not to commence any
Proceeding other than in such courts, and (e) waives, to the fullest extent permitted by law, any
claim that such Proceeding is brought in an inconvenient forum. THE COMPANY (ON BEHALF OF ITSELF
35
AND, TO THE FULLEST EXTENT PERMITTED BY LAW, ON BEHALF OF ITS RESPECTIVE EQUITY HOLDERS AND
CREDITORS) HEREBY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED
UPON, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT, THE REGISTRATION STATEMENT AND THE PROSPECTUS.
15. Absence of Fiduciary Relationship; Patriot Act Compliance. The Company
acknowledges and agrees that:
(a) the Underwriters have been retained solely to act in the capacity of an arms length
contractual counterparty to the Company as underwriter in connection with the sale of the Companys
securities and not as a financial advisor or a fiduciary to, or an agent of, the Company or any
other person; and that no fiduciary, advisory or agency relationship between the Company and the
Underwriters have been created in respect of any of the transactions contemplated by this
Agreement, irrespective of whether the Underwriters have advised or is advising the Company on
other matters;
(b) neither the Representative nor any Underwriter is advising the Company as to any legal,
tax, investment, accounting or regulator matters in any jurisdiction; the Company shall consult
with its own advisors concerning such matters and shall be responsible for making its own
independent investigation and appraisal of the transactions contemplated hereby, and the
Underwriters shall have no responsibility or liability to the Company with respect thereto; and any
review by the Underwriters of the Company, the transactions contemplated hereby or other matters
relating to such transactions will be performed solely for the benefit of the Underwriters and
shall not be on behalf of the Company;
(c) the price of the securities set forth in this Agreement was established by the Company
following discussions and arms-length negotiations with the Underwriters, and the Company is
capable of evaluating and understanding and understands and accepts the terms, risks and conditions
of the transactions contemplated by this Agreement;
(d) it has been advised that the Underwriters and their affiliates are engaged in a broad
range of transactions which may involve interests that differ from those of Company and that the
Underwriters have no obligation to disclose such interests and transactions to Company by virtue of
any fiduciary, advisory or agency relationship;
(e) it waives, to the fullest extent permitted by law, any claims it may have against the
Underwriters for breach of fiduciary duty or alleged breach of fiduciary duty in respect of the
transactions contemplated by this Agreement and agrees that the Underwriters shall have no
liability (whether direct or indirect) to Company in respect of such a fiduciary duty claim or to
any person asserting a fiduciary duty claim on behalf of or in right of the Company, including
shareholders, employees or creditors of the Company; and
36
(f) in accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record
information that identifies their respective clients, including the Company, which information may
include the name and address of their respective clients, as well as other information that will
allow the Underwriters to properly identify their respective clients.
16. Authority of Representative. Any action by the Underwriters hereunder may be taken
by J.P. Morgan Securities Inc. on behalf of the Underwriters, and any such action taken by J.P.
Morgan Securities Inc. shall be binding upon the Underwriters.
17. Non-Exclusive Remedies. The remedies provided for in Sections 8 and 9 are not
exclusive and shall not limit any rights or remedies which may otherwise be available to any
indemnified person at law or in equity.
18. Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all such counterparts shall together constitute one
and the same instrument. Delivery of a signed counterpart of this Agreement by facsimile
transmission shall constitute valid and sufficient delivery thereof.
19. Headings. The headings herein are inserted for convenience of reference only and
are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.
20. Time is of the Essence. Time shall be of the essence in this Agreement. As used
herein, the term business day shall mean any day when the Commissions office in Washington, D.C.
is open for business.
[signature page follows]
37
If the foregoing correctly sets forth your understanding, please so indicate in the space
provided below for that purpose, whereupon this letter shall constitute a binding agreement among
us.
Very truly yours, ENTERTAINMENT PROPERTIES TRUST |
||||
By: | /s/ Mark A. Peterson | |||
Name: | Mark A. Peterson | |||
Title: | Vice President, Chief Financial Officer and Treasurer |
|||
Accepted as of the date first above
written, for itself and as Representative
of the several Underwriters named on
Schedule I hereto:
J.P. MORGAN SECURITIES INC.
By: | /s/ Thomas A. Grier | |||
Name: | Thomas A. Grier | |||
Title: | Managing Director |
SCHEDULE I
Name of Underwriter | Number of Firm Shares | |||
J.P. Morgan Securities Inc. |
1,870,000 | |||
RBC Capital Markets Corporation |
1,595,000 | |||
Citigroup Global Markets Inc. |
770,000 | |||
Barclays Capital Inc. |
550,000 | |||
KeyBanc Capital Markets, Inc. |
550,000 | |||
FBR Capital Markets & Co. |
165,000 | |||
Total: |
5,500,000 |
SchI-1
SCHEDULE II
None.
SchII-1