Exhibit 1.1
EXECUTION COPY
KIMCO REALTY CORPORATION
SERIES C MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
AMENDED AND RESTATED DISTRIBUTION AGREEMENT
July 18, 2006
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO. ▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
4 World Financial ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
BANC OF AMERICA SECURITIES LLC ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
Bank of America Corporate Center ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
BNY CAPITAL MARKETS, INC. UBS SECURITIES LLC
▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
CREDIT SUISSE SECURITIES (USA) LLC WACHOVIA CAPITAL MARKETS, LLC
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
New York, New York 10010 ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This Amended and Restated Distribution Agreement (as the same may be
amended, modified or supplemented from time to time, this "Agreement"), by and
among Kimco Realty Corporation, a Maryland corporation (the "Company"), and
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, Banc of
America Securities LLC, BNY Capital Markets, Inc., Credit Suisse Securities
(USA) LLC, ▇▇▇▇▇▇▇, Sachs & Co., ▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co. Incorporated, UBS Securities LLC and Wachovia Capital Markets, LLC (each, an
"Agent", and collectively, the "Agents") confirms the agreement between the
Company and the Agents with respect to the issue and sale by the Company of its
Series C Medium-Term Notes Due Nine Months or More From Date of Issue (the
"Notes"). This Agreement amends and restates the Distribution Agreement, dated
September 26, 2001, as amended and supplemented by the First Amendment to the
Distribution Agreement, dated July 28, 2003 (as amended, the "Original
Distribution Agreement") between the Company and the Agents with respect to the
issue and sale by the Company's Notes. The Notes are to be issued pursuant to an
Indenture, dated as of September 1, 1993, as amended, supplemented or modified
from time to time, including the First Supplemental Indenture thereto dated as
of August 4, 1994, the Second Supplemental Indenture thereto dated as of April
7, 1995, and the Third Supplemental Indenture thereto dated as of June 2, 2006
(the "Indenture"), between the Company and The Bank of New York, as trustee (the
"Trustee"). The Indenture has been qualified under the Trust Indenture Act of
1939, as amended (the "1939 Act"), and the rules and regulations of the
Securities and Exchange Commission (the "Commission") under the 1939 Act.
This Agreement provides both for the sale of Notes by the Company to
one or more Agents as principal for resale to investors and other purchasers and
for the sale of Notes by the Company directly to investors (as may from time to
time be agreed to by the Company and the applicable Agent), in which case such
Agent will act as an agent of the Company in soliciting purchases of the Notes.
Whenever the Company determines to make an offering of Notes through you or
through an underwriting syndicate managed by you, the Company will enter into an
agreement, substantially in the form set forth as Exhibit A hereto, (the "Terms
Agreement") setting forth the terms of offer and sale of such Notes of a
particular tranche.
The Company has filed with the Commission an automatic shelf
registration statement on Form S-3 (No. 333-133908) which provides for the
registration of securities (including the Notes) under the Securities Act of
1933, as amended (the "1933 Act"), and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations"), and the Company has filed such
post-effective amendments thereto as may have been required as of the date
hereof. Such registration statement (as so amended, if applicable), including
any document incorporated therein by reference pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and any further registration
statements which may be filed by the Company for the purpose of registering the
Notes and in connection with which this Agreement is included or incorporated by
reference as an exhibit, and any prospectus, prospectus supplement and/or
pricing supplement deemed or retroactively deemed to be a part thereof that has
not been superseded or modified is referred to herein as the "Registration
Statement." "Registration Statement" without reference to a time means the
Registration Statement as of the time of the first contract of sale of any
tranche of Notes, which time shall be considered the "effective date" of the
Registration Statement with respect to such Notes. For purposes of the
definition of Registration Statement as used herein, information contained in a
form of prospectus, prospectus supplement or pricing supplement that is deemed
retroactively to be a part of the Registration Statement pursuant to Rule 430B
of the 1933 Act Regulations ("Rule 430B") shall be considered to be included in
the Registration Statement at the time specified in Rule 430B. The prospectus
supplement relating to the series of Notes and the base prospectus and all
applicable amendments or supplements thereto, in each case immediately prior to
the Applicable Time (as defined below), including any document incorporated by
reference therein, shall collectively be referred to herein as the "Statutory
Prospectus." The "Prospectus" means, collectively, the Statutory Prospectus and
the final pricing supplement in the form first filed with the Commission
pursuant to Rule 424(b) of the 1933 Act Regulations ("Rule 424(b)") that
discloses the public offering price and other final terms of the Notes of any
issue and otherwise satisfies Section 10(a) of the 1933 Act. A "preliminary
prospectus" shall be deemed to refer to any prospectus and any prospectus
supplement used before the acceptance by the Company of an offer for the
purchase of Notes which omitted information to be included upon pricing in a
form of prospectus filed with the Commission pursuant to Rule 424(b). For
purposes of this Agreement, all references to the Registration Statement,
Statutory Prospectus, Prospectus or preliminary prospectus or to any amendment
or supplement thereto shall be deemed to include any copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("▇▇▇▇▇").
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All references in this Agreement to financial statements and schedules
and other information which is "disclosed," "contained," "included" or "stated"
(or other references of like import) in the Registration Statement, Statutory
Prospectus, Prospectus or preliminary prospectus shall be deemed to include all
such financial statements and schedules and other information which is
incorporated by reference in or otherwise deemed by the 1933 Act Regulations to
be a part of or included in the Registration Statement, Statutory Prospectus,
Prospectus or preliminary prospectus, as the case may be; and all references in
this Agreement to amendments or supplements to the Registration Statement,
Statutory Prospectus, Prospectus or preliminary prospectus shall be deemed to
include the filing of any document under the 1934 Act which is incorporated by
reference in or otherwise deemed by the 1933 Act Regulations to be a part of or
included in the Registration Statement, Statutory Prospectus, Prospectus or
preliminary prospectus, as the case may be.
SECTION 1. Appointment as Agent.
(a) Appointment. Subject to the terms and conditions stated herein and
subject to the reservation by the Company of the right to sell Notes directly on
its own behalf, the Company hereby agrees that Notes will be sold to or through
the Agents. The Company agrees that it will not appoint any other agents to act
on its behalf, or to assist it, in the placement of the Notes. Notwithstanding
any provision herein to the contrary, the Company reserves the right to appoint
additional agents for the offer and sale of Notes, which agency may be on an
on-going basis or on a one-time basis. Any such additional agent shall become a
party to this Agreement and shall thereafter be subject to the provisions hereof
and entitled to the benefits hereunder upon the execution of a counterpart
hereof or other form of acknowledgement of its appointment hereunder.
(b) Sale of Notes. The Company shall not sell or approve the
solicitation of purchases of Notes in excess of the amount which shall be
authorized by the Company from time to time. The Agents shall have no
responsibility for maintaining records with respect to the aggregate initial
offering price of Notes sold, or of otherwise monitoring the availability of
Notes for sale, under the Registration Statement.
(c) Purchases as Principal. The Agents shall not have any obligation to
purchase Notes from the Company as principal, but one or more Agents may agree
from time to time to purchase Notes as principal for resale to investors and
other purchasers determined by such Agent or Agents. Any such purchase of Notes
by an Agent as principal shall be made in accordance with Section 3(a) hereof.
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(d) Solicitations as Agent. If agreed upon by an Agent and the Company,
such Agent, acting solely as agent for the Company and not as principal, will
solicit purchases of the Notes. Such Agent will communicate to the Company,
orally, each offer to purchase Notes solicited by it on an agency basis, other
than those offers rejected by such Agent. Such Agent shall have the right, in
its discretion reasonably exercised, to reject any proposed purchase of Notes,
as a whole or in part, and any such rejection shall not be deemed a breach of
its agreement contained herein. The Company may accept or reject any proposed
purchase of Notes, in whole or in part. Such Agent shall make reasonable efforts
to assist the Company in obtaining performance by each purchaser whose offer to
purchase Notes has been solicited by it and accepted by the Company. Such Agent
shall not have any liability to the Company in the event that any such purchase
is not consummated for any reason. If the Company shall default on its
obligation to deliver Notes to a purchaser whose offer it has accepted, the
Company shall (i) hold such Agent harmless against any loss, claim or damage
arising from or as a result of such default by the Company and (ii)
notwithstanding such default, pay to such Agent any commission to which it would
otherwise be entitled.
(e) Reliance. The Company and the Agents agree that any Notes purchased
from the Company by one or more Agents as principal shall be purchased, and any
Notes the placement of which an Agent arranges as an agent of the Company shall
be placed by such Agent, in reliance on the representations, warranties,
covenants and agreements of the Company contained herein and on the terms and
conditions and in the manner provided herein.
SECTION 2. Representations and Warranties.
(a) The Company represents and warrants to the Agents as of the date
hereof, as of the date of each delivery of Notes (whether to one or more Agents
as principal or through an Agent as agent) (the date of each such delivery to
one or more Agents as principal is referred to herein as a "Settlement Date"),
and as of the effectiveness of any amendment to the Registration Statement
(including the filing of any document incorporated by reference therein), as of
the date of any supplement to the Prospectus, as of the Applicable Time (each of
the times referenced above is referred to herein as a "Representation Date"),
and agrees with each Agent as follows:
(i) Registration Statement and Prospectus. (A) At the time of
filing the Registration Statement, (B) at the time of the most recent
amendment thereto for the purposes of complying with Section 10(a)(3)
of the 1933 Act (whether such amendment was by post-effective
amendment, incorporated report filed pursuant to Section 13 or 15(d) of
the 1934 Act or form of prospectus), (C) at the time the Company or any
person acting on its behalf (within the meaning, for this clause only,
of Rule 163(c) of the 1933 Act Regulations ("Rule 163(c)")) made any
offer relating to the Notes of a particular tranche in reliance on the
exemption of Rule 163 of the 1933 Act Regulations ("Rule 163") and (D)
as of the date of the execution and delivery of this Agreement and the
applicable Terms Agreement, the Company was and is a "well-known
seasoned issuer," as defined in Rule 405 of the 1933 Act Regulations
("Rule 405"). The Registration Statement is an "automatic shelf
registration statement," as defined in Rule 405, and the Notes, since
their registration on the Registration Statement, have been and remain
eligible for registration by the Company on a Rule 405 "automatic shelf
registration statement." The Company has not received from the
Commission any notice pursuant to Rule 401(g)(2) of the 1933 Act
Regulations objecting to the use of the automatic shelf registration
statement form.
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At the time of filing the Registration Statement, at the
earliest time thereafter that the Company or another offering
participant (after being engaged by the Company in connection
therewith) made a bona fide offer (within the meaning of Rule 164(h)(2)
of the 1933 Act Regulations) of the Notes of a particular tranche and
as of the date the execution and delivery of this Agreement and the
applicable Terms Agreement, the Company was not and is not an
"ineligible issuer," as defined in Rule 405.
(ii) The Registration Statement became effective upon filing
under Rule 462(e) of the 1933 Act Regulations ("Rule 462(e)") on May 9,
2006, and any post-effective amendment thereto also became effective
upon filing under Rule 462(e). The Company has filed such
post-effective amendments to the Registration Statement as may have
been required prior to the Company's acceptance of an offer to purchase
the Notes. No stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information
has been complied with; at the respective times that the Registration
Statement and any post-effective amendment thereto (including the
filing of the Company's most recent Annual Report on Form 10-K with the
Commission (the "Annual Report on Form 10-K")) became effective, at
each deemed effective date with respect to the Agents pursuant to Rule
430B(f)(2) of the 1933 Act Regulations and at the date hereof, the
Registration Statement complied in all material respects with the
requirements of the 1933 Act, the 1933 Act Regulations, the 1939 Act
and the rules and regulations of the Commission under the 1939 Act (the
"1939 Act Regulations") and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; each preliminary prospectus and the Statutory Prospectus
filed as part of the Registration Statement as originally filed or as
part of any amendment thereto, or filed pursuant to Rule 424 under the
1933 Act Regulations ("Rule 424"), complied when so filed in all
material respects with the 1933 Act Regulations; each preliminary
prospectus and the Statutory Prospectus delivered to the applicable
Agent(s) for use in connection with the offering of Notes are identical
to any electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
Any offer that is a "written communication" as defined in Rule
405 relating to the Notes of a particular tranche made prior to the
filing of the Registration Statement by the Company or any person
acting on its behalf (within the meaning, for this paragraph only, of
Rule 163(c)) has been filed with the Commission in accordance with the
exemption provided by Rule 163 and otherwise complied with the
requirements of Rule 163, including without limitation the legending
requirement, to qualify such offer for the exemption from Section 5(c)
of the 1933 Act provided by Rule 163.
As of the Applicable Time with respect to the offering of
Notes of a particular tranche, the Issuer Free Writing Prospectus(es)
(as defined below), if any, used at or prior to the Applicable Time
(including the Final Term Sheet (as defined in Section 4(e)) and the
Statutory Prospectus, relating to the offering of the Notes, when
considered together (collectively, the "General Disclosure Package")
will not include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
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As used in this subsection and elsewhere in this Agreement:
"Applicable Time" as identified in the applicable Terms
Agreement, means the time agreed to by the Company and the applicable
Agent(s) at the time of the pricing of the Notes of a particular
tranche, which, unless otherwise agreed, shall be the time immediately
after the Company and the lead Agent(s) agree on the pricing terms of
such Notes.
"Issuer Free Writing Prospectus" means any "issuer free
writing prospectus," as defined in Rule 433 of the 1933 Act Regulations
("Rule 433"), relating to the Notes of a particular tranche in the form
filed or required to be filed with the Commission or, if not required
to be filed, in the form retained in the Company's records pursuant to
Rule 433(g) and identified in the applicable Terms Agreement.
Each Issuer Free Writing Prospectus, as of its issue date and
at all subsequent times through the earlier of, the completion of the
public offer and sale of the Notes of a particular tranche (as
communicated to the Company by the Agent(s)) and nine months from the
date of the applicable Terms Agreement or until any earlier date that
the Company notified or notifies the applicable Agent(s) as described
in Section 4(c), did not, does not and will not include any information
that conflicted, conflicts or will conflict with the information
contained in the Registration Statement.
The representations and warranties in this subsection shall
not apply to statements in or omissions from the Registration
Statement, the Prospectus or any Issuer Free Writing Prospectus made in
reliance upon and in conformity with written information furnished to
the Company by any Agent through you expressly for use therein.
(iii) Accountants. The accountants who certified the financial
statements, financial statement schedules and historical summaries of
revenue and certain operating expenses for the properties related
thereto included or incorporated by reference in the Registration
Statement, the Prospectus or the General Disclosure Package are
independent public accountants as required by the 1933 Act and the 1933
Act Regulations.
(iv) Financial Statements. The historical financial statements
included or incorporated by reference in the Registration Statement,
the General Disclosure Package or the Prospectus present fairly the
financial position of the Company and its consolidated subsidiaries as
at the dates indicated and the results of their operations for the
periods specified; except as may otherwise be stated in the
Registration Statement, the Prospectus or the General Disclosure
Package, said financial statements have been prepared in conformity
with generally accepted accounting principles applied on a consistent
basis throughout the periods involved; and the financial statement
schedules and other financial information and data included or
incorporated by reference in the Registration Statement, the Prospectus
and the General Disclosure Package present fairly the information
required to be stated therein.
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(v) Summaries of Revenue and Certain Operating Expenses, etc.
The historical summaries of revenue and certain operating expenses
included or incorporated by reference in the Registration Statement,
the Prospectus or the General Disclosure Package present fairly the
revenue and those operating expenses included in such summaries for the
periods specified in conformity with generally accepted accounting
principles; the pro forma financial statements included or incorporated
by reference in the Registration Statement, the Prospectus or the
General Disclosure Package, if any, present fairly the pro forma
financial position of the Company and its consolidated subsidiaries as
at the dates indicated and the pro forma results of their operations
for the periods specified; and the pro forma financial statements have
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis, the assumptions on which such
pro forma financial statements have been prepared are reasonable and
are set forth in the notes thereto, such pro forma financial statements
have been prepared, and the pro forma adjustments set forth therein
have been applied, in accordance with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations, and such pro
forma adjustments have been properly applied to the historical amounts
in the compilation of such statements; other than as set forth therein,
the Company is not required to include any financial statements
pursuant to Rule 3-05 or Rule 3-14 or pro forma financial statements in
the Registration Statement, the General Disclosure Package or the
Prospectus under the 1933 Act or the 1933 Act Regulations or under the
1934 Act or the 1934 Act Regulations; and all disclosures contained in
the Registration Statement, the General Disclosure Package or the
Prospectus, if any, regarding "non-GAAP financial measures" (as such
term is defined by the rules and regulations of the Commission) comply
with Regulation G under the 1934 Act and Item 10 of Regulation S-K of
the 1933 Act Regulations, to the extent applicable.
(vi) Material Changes or Material Transactions. Since the
respective dates as of which information is given in the Registration
Statement, the Prospectus or the General Disclosure Package, except as
may otherwise be stated therein or contemplated thereby, (1) there has
been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business and (2) there
have been no transactions entered into by the Company or any of its
subsidiaries other than those in the ordinary course of business that
are material with respect to the Company and its subsidiaries
considered as one enterprise.
(vii) Due Incorporation and Qualification. The Company has
been duly incorporated and is validly existing as a corporation under
the laws of Maryland and is in good standing with the State Department
of Assessments and Taxation of Maryland with corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and the General Disclosure
Package; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify would not have a material adverse effect on the
condition, financial or otherwise, or on the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as
one enterprise.
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(viii) Subsidiaries. Each significant subsidiary (as defined
in Rule 1-02 of Regulation S-X promulgated under the ▇▇▇▇ ▇▇▇) of the
Company (each, a "Significant Subsidiary") has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and conduct its
business as described in the Prospectus and the General Disclosure
Package and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify would not have a material adverse effect on the
condition, financial or otherwise, or on the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as
one enterprise; and all of the issued and outstanding capital stock of
each Significant Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and is owned by the Company,
directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity, except
for security interests granted in respect of indebtedness of the
Company or any of its subsidiaries and referred to in the Prospectus
and the General Disclosure Package.
(ix) Authorization and Validity of this Agreement. This
Agreement has been duly and validly authorized, executed and delivered
by the Company and, upon execution and delivery by the Agents, will
constitute a valid and legally binding agreement of the Company.
(x) Authorization and Validity of the Indenture. The Indenture
has been duly and validly authorized, executed and delivered by the
Company and constitutes a valid and legally binding agreement of the
Company, enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting
enforcement of creditors' rights generally or by general equity
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law), and except further as enforcement
thereof may be limited by (1) requirements that a claim with respect to
any debt securities issued or issuable under the Indenture that are
payable in a foreign or composite currency (or a foreign or composite
currency judgment in respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing on a date determined pursuant
to applicable law or (2) governmental authority to limit, delay or
prohibit the making of payments outside the United States; and the
Indenture has been duly qualified under the 1939 Act.
(xi) Authorization and Validity of the Notes. The Notes have
been duly and validly authorized for offering, issuance and sale
pursuant to this Agreement and, when issued, authenticated and
delivered pursuant to the provisions of the Indenture, against payment
of the consideration therefor specified in the Prospectus or agreed
upon pursuant to the provisions of this Agreement, the Notes will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or other laws relating to or affecting enforcement of
creditors' rights generally or by general equity principles (regardless
of whether enforcement is considered in a preceding in equity or at
law), and except further as enforcement thereof may be limited by (1)
requirements that a claim with respect to any Notes payable in a
foreign or composite currency (or a foreign or composite currency
judgment in respect of such claim) be converted into U.S. dollars at a
rate or exchange prevailing on a date determined pursuant to applicable
law or (2) governmental authority to limit, delay or prohibit the
making of payments outside the United States; the Notes will be
substantially in the form heretofore delivered to the Agents and such
Notes and the Indenture will conform in all material respects to the
respective statements relating thereto contained in the Registration
Statement, the Prospectus and the General Disclosure Package; and each
holder of Notes will be entitled to the benefits of the Indenture.
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(xii) No Defaults. Neither the Company nor any of its
subsidiaries is in violation of its charter or by-laws or in default in
the performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which it is a party
or by which it or any of them may be bound, or to which any of the
property or assets of the Company or any of its subsidiaries is
subject, except for any such violation or default that would not have a
material adverse effect on the condition, financial or otherwise, or on
the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise; the execution, delivery
and performance of this Agreement and the Indenture and the
consummation of the transactions contemplated herein and therein and
compliance by the Company with its obligations hereunder and thereunder
have been duly authorized by all necessary corporate action and do not
and will not conflict with or constitute a breach of, or default under,
or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company or any
of its subsidiaries is a party or by which it or any of them may be
bound or to which any of the property or assets of the Company or any
of its subsidiaries is subject, nor will such action result in any
violation of the provisions of the charter or by-laws of the Company or
any applicable law, administrative regulation or administrative or
court order or decree.
(xiii) Regulatory Approvals. No authorization, approval,
consent order or decree of any court or governmental authority or
agency, domestic or foreign, is necessary or required that has not been
obtained in connection with the consummation by the Company of the
transactions contemplated by this Agreement, the applicable Terms
Agreement or the Indenture, except such as may be required under the
1933 Act, the 1939 Act or the 1933 Act Regulations or state securities
laws or real estate syndication laws.
9
(xiv) Qualification as Real Estate Investment Trust. The
Company has operated and intends to continue to operate in such a
manner as to qualify to be taxed as a "real estate investment trust"
under the Internal Revenue Code of 1986, as amended (the "Code"), for
the taxable year in which sales of Notes are to occur, unless otherwise
specified in the Prospectus and the General Disclosure Package.
(xv) Commodity Exchange Act. The Notes, upon issuance, will be
excluded or exempted under, or beyond the purview of, the Commodity
Exchange Act, as amended (the "Commodity Exchange Act"), and the rules
and regulations of the Commodity Futures Trading Commission under the
Commodity Exchange Act (the "Commodity Exchange Act Regulations").
(xvi) Investment Company Act. Neither the Company nor any of
its subsidiaries is, and upon the issuance and sale of the Notes as
herein contemplated and the application of the net proceeds therefrom
as described in the Prospectus and the General Disclosure Package, will
be, an "investment company" within the meaning of the Investment
Company Act of 1940, as amended (the "1940 Act").
(xvii) Legal Proceedings; Contracts. There is no action, suit
or proceeding before or by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the Company,
threatened against or affecting, the Company or any of its
subsidiaries, which (1) is required to be disclosed in the Registration
Statement and the Prospectus (other than as disclosed therein), (2)
might result in any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise or (3) might materially and adversely affect the properties
or assets thereof or the consummation of this Agreement, the applicable
Terms Agreement or the Indenture or the transactions contemplated
herein or therein; all pending legal or governmental proceedings to
which the Company or any of its subsidiaries is a party or of which any
of its property or assets is the subject which are not described in the
Registration Statement, the Prospectus and the General Disclosure
Package, including ordinary routine litigation incidental to the
business, are considered in the aggregate, not material; and there are
no contracts or documents of the Company or any of its subsidiaries
which are required to be filed as exhibits to the Registration
Statement by the 1933 Act or by the 1933 Act Regulations which have not
been so filed.
(xviii) Licenses. The Company and its subsidiaries possess
such certificates, authorities or permits issued by the appropriate
state, federal or foreign regulatory agencies or bodies necessary to
conduct the business now operated by them, other than those the failure
to possess or own would not have a material adverse effect on the
condition, financial or otherwise, or on the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as
one enterprise, and neither the Company nor any of its subsidiaries has
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling
or finding, would materially and adversely affect the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise.
10
(xix) Intellectual Property. Neither the Company nor any of
its subsidiaries is required to own or possess any trademarks, service
marks, trade names or copyrights in order to conduct the business now
operated by it, other than those the failure to possess or own would
not have a material adverse effect on the condition, financial or
otherwise, or on the earnings, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise.
(xx) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement,
the Prospectus or the General Disclosure Package, at the time they were
or hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission promulgated thereunder (the
"1934 Act Regulations"), and, when read together with the other
information in the Registration Statement, the Prospectus or the
General Disclosure Package, as the case may be, (a) at the time the
Registration Statement became effective, (b) at the earlier of the time
the Prospectus was first used and the date and time of the first
contract of sale of the Notes of a particular tranche and (c) as of
each Representation Date, did not and will not include an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
(xxi) Properties and Assets of Company. Except as otherwise
disclosed in the Registration Statement, the Prospectus and the General
Disclosure Package and except as would not have a material adverse
effect on the condition, financial or otherwise, or on the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise: (i) all properties and
assets described in the Registration Statement, the Prospectus or the
General Disclosure Package are owned with good and marketable title by
the Company, its subsidiaries and/or a joint venture or partnership in
which any such party is a participant (a "Related Entity"); (ii) all of
the leases under which any of the Company, its subsidiaries or, to the
knowledge of the Company, Related Entities holds or uses real
properties or assets as a lessee are in full force and effect, and
neither the Company nor any of its subsidiaries or, to the knowledge of
the Company, Related Entities is in material default in respect of any
of the terms or provisions of any of such leases and no claim has been
asserted by anyone adverse to any such party's rights as lessee under
any of such leases, or affecting or questioning any such party's right
to the continued possession or use of the leased property or assets
under any such leases; (iii) all liens, charges, encumbrances, claims
or restrictions on or affecting the properties and assets of any of the
Company or its subsidiaries or Related Entities which are required to
be disclosed in the Registration Statement or the Prospectus are
disclosed therein; (iv) neither the Company nor any of its subsidiaries
or, to the knowledge of the Company, Related Entities nor any lessee of
any portion of any such party's properties is in default under any of
the leases pursuant to which any of the Company or its subsidiaries or,
to the knowledge of the Company, Related Entities leases its properties
and neither the Company nor any of its subsidiaries or Related Entities
knows of any event which, but for the passage of time or the giving of
notice, or both, would constitute a default under any of such leases;
(v) no tenant under any of the leases pursuant to which any of the
Company or its subsidiaries or, to the knowledge of the Company,
Related Entities leases its properties has an option or right of first
refusal to purchase the premises demised under such lease; (vi) each of
the properties of any of the Company or, to the knowledge of the
Company, its subsidiaries or Related Entities complies with all
applicable codes and zoning laws and regulations; and (vii) neither the
Company nor any of its subsidiaries has knowledge of any pending or
threatened condemnation, zoning change or other proceeding or action
that will in any manner affect the size of, use of, improvements on,
construction on, or access to the properties of any of the Company or
its subsidiaries or Related Entities.
11
(xxii) Title Insurance. Title insurance in favor of the
mortgagee or the Company, its subsidiaries and/or its Related Entities
is maintained with respect to each shopping center property owned by
any such entity in an amount at least equal to (a) the cost of
acquisition of such property or (b) the cost of construction of such
property (measured at the time of such construction), except, in each
case, where the failure to maintain such title insurance would not have
a material adverse effect on the condition, financial or otherwise, or
on the earnings, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise.
(xxiii) Non-Convertible Indebtedness. The mortgages and deeds
of trust encumbering the properties and assets described in the
Registration Statement, the Prospectus or the General Disclosure
Package are not convertible nor does any of the Company or its
subsidiaries hold a participating interest therein.
(xxiv) Authorization of Partnership and Joint Venture
Agreements. Each of the partnership and joint venture agreements to
which the Company or any of its subsidiaries is a party, and which
relates to real property described in the Registration Statement, the
Prospectus or the General Disclosure Package, has been duly authorized,
executed and delivered by such applicable party and constitutes the
valid agreement thereof, enforceable in accordance with its terms,
except as limited by (a) the effect of bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to or affecting the rights or remedies of creditors or
(b) the effect of general principles of equity, whether enforcement is
considered in a proceeding in equity or at law, and the discretion of
the court before which any proceeding therefor may be brought, and the
execution, delivery and performance of any of such agreements did not,
at the time of execution and delivery, and does not constitute a breach
of, or default under, the charter or by-laws of such party or any
material contract, lease or other instrument to which such party is a
party or by which its properties may be bound or any law,
administrative regulation or administrative or court decree.
(xxv) Hazardous Materials. None of the Company or any of its
subsidiaries has any knowledge of (a) the unlawful presence of any
hazardous substances, hazardous materials, toxic substances or waste
materials (collectively, "Hazardous Materials") on any of the
properties owned by it or the Related Entities, or (b) any unlawful
spills, releases, discharges or disposal of Hazardous Materials that
have occurred or are presently occurring off such properties as a
result of any construction on or operation and use of such properties
which presence or occurrence would have a material adverse effect on
the condition, financial or otherwise, or on the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise; and in connection with the construction
on or operation and use of the properties owned by the Company, its
subsidiaries and Related Entities, each of the Company and its
subsidiaries represents that it has no knowledge of any material
failure to comply with all applicable local, state and federal
environmental laws, regulations, ordinances and administrative and
judicial orders relating to the generation, recycling, reuse, sale,
storage, handling, transport and disposal of any Hazardous Materials.
12
(xxvi) Ratings. The Medium-Term Note Program under which the
Notes are issued (the "Program"), as well as the Notes, are rated Baa1
by ▇▇▇▇▇'▇ Investors Service, Inc. and A- by Standard & Poor's Ratings
Services, or such other rating as to which the Company shall have most
recently notified the Agents pursuant to Section 4(a)(vii) hereof.
(xxvii) Maintenance of Internal Accounting Controls. The
Company and each of its subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurances that
(1) transactions are executed in accordance with management's general
or specific authorization; (2) transactions are recorded as necessary
to permit preparation of financial statements in conformity with United
States generally accepted accounting principles and to maintain
accountability for assets; (3) access to assets is permitted only in
accordance with management's general or specific authorization; and (4)
the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences. Except as described in the Registration
Statement, the Prospectus and the General Disclosure Package, since the
end of the Company's most recent audited fiscal year, there has been
(I) no material weakness in the Company's internal control over
financial reporting (whether or not remediated) and (II) no change in
the Company's internal control over financial reporting that has
materially affected, or is reasonably likely to materially affect, the
Company's internal control over financial reporting.
The Company and its consolidated subsidiaries employ
disclosure controls and procedures that are designed to ensure that
information required to be disclosed by the Company in the reports that
it files or submits under the 1934 Act is recorded, processed,
summarized and reported, within the time periods specified in the
Commission's rules and forms, and is accumulated and communicated to
the Company's management, including its principal executive officer or
officers and principal financial officer or officers, as appropriate,
to allow timely decisions regarding disclosure.
(xxviii) Compliance With ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. There is and has
been no failure on the part of the Company or any of the Company's
directors or officers, in their capacities as such, to comply in all
material respects with any provision of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002
and the rules and regulations promulgated in connection therewith (the
"▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act"), including Section 402 related to loans and
Sections 302 and 906 related to certifications.
13
(xxix) Pending Proceedings. The Registration Statement is not
the subject of a pending proceeding or examination under Section 8(d)
or 8(e) of the 1933 Act, and the Company is not the subject of a
pending proceeding under Section 8A of the 1933 Act in connection with
the offering of the Notes.
(b) Additional Certifications. Any certificate signed by any director
or officer of the Company or any of its subsidiaries and delivered to one or
more Agents or to counsel for the Agents in connection with an offering of Notes
to one or more Agents as principal or through an Agent as agent shall be deemed
a representation and warranty by the Company to such Agent or Agents as to the
matters covered thereby on the date of such certificate and, unless subsequently
amended or supplemented, at each Representation Date subsequent thereto.
SECTION 3. Purchases as Principal; Solicitations as Agent.
(a) Purchases as Principal. Unless otherwise agreed to in the
applicable Terms Agreement, Notes shall be purchased by the Agents, individually
or in a syndicate as principal. Such purchases shall be made in accordance with
terms agreed upon by one or more Agents and the Company (which terms, unless
otherwise agreed, shall, to the extent applicable, include those terms specified
in Exhibit A hereto and be agreed upon orally, with written confirmation
prepared by such Agent or Agents and mailed to the Company). An Agent's
commitment to purchase Notes as principal shall be deemed to have been made on
the basis of the representations and warranties of the Company herein contained
and shall be subject to the terms and conditions herein set forth. Unless the
context otherwise requires, references herein to "this Agreement" shall include
the agreement of one or more Agents to purchase Notes from the Company as
principal. Each purchase of Notes, unless otherwise agreed in the applicable
Terms Agreement, shall be at a discount from the principal amount of each such
Note equivalent to the applicable commission set forth in Schedule A hereto. The
Agents may engage the services of any other broker or dealer in connection with
the resale of the Notes purchased by them as principal and may allow all or any
portion of the discount received in connection with such purchases from the
Company to such brokers and dealers. At the time of each purchase of Notes from
the Company by one or more Agents as principal, such Agent or Agents shall
specify the requirements for the stand-off agreement, officers' certificate,
opinions of counsel and comfort letter pursuant to Sections 4(j), 7(b), 7(c) and
7(d) hereof.
If the Company and two or more Agents enter into a Terms Agreement
pursuant to which such Agents agree to purchase Notes from the Company as
principal and one or more of such Agents shall fail at the Settlement Date to
purchase the Notes which it or they are obligated to purchase (the "Defaulted
Notes"), then the nondefaulting Agents shall have the right, within 24 hours
thereafter, to make arrangements for one of them or one or more other Agents or
underwriters, reasonably acceptable to the Company, to purchase all, but not
less than all, of the Defaulted Notes in such amounts as may be agreed upon and
upon the terms herein set forth; provided, however, that if such arrangement
shall not have been completed within such 24-hour period, then:
(i) if the aggregate principal amount of Defaulted Notes does
not exceed 10% of the aggregate principal amount of Notes to be so
purchased by all of such Agents on the Settlement Date, the
nondefaulting Agents shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their
respective initial underwriting obligations bear to the underwriting
obligations of all nondefaulting Agents; or
14
(ii) if the aggregate principal amount of Defaulted Notes
exceeds 10% of the aggregate principal amount of Notes to be so
purchased by all of such Agents on the Settlement Date, such agreement
shall terminate without liability on the part of any nondefaulting
Agent.
No action taken pursuant to this paragraph shall relieve any defaulting Agent
from liability in respect of its default. In the event of any such default which
does not result in a termination of such agreements, either the nondefaulting
Agents or the Company shall have the right to postpone the Settlement Date for a
period not exceeding seven days in order to effect any required changes in the
Registration Statement or the Prospectus or in any other documents or
arrangements.
(b) Solicitations as Agent. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, when agreed by the Company and an Agent in the applicable Terms
Agreement, such Agent, as an agent of the Company, will use its reasonable
efforts to solicit offers for the purchase of Notes upon the terms and
conditions set forth herein and in the Prospectus. The Agents are not authorized
to appoint sub-agents with respect to Notes sold through them as agent. All
Notes sold through an Agent as agent will be sold at 100% of their principal
amount unless otherwise agreed to by the Company and such Agent.
The Company reserves the right, in its sole discretion, to suspend
solicitation of offers for the purchase of Notes through an Agent, as an agent
of the Company, commencing at any time for any period of time or permanently. As
soon as practicable after receipt of instructions from the Company, such Agent
will suspend solicitation of offers for the purchase of Notes from the Company
until such time as the Company has advised such Agent that such solicitation may
be resumed.
The Company agrees to pay each Agent a commission, in the form of a
discount, equal to the applicable percentage of the principal amount of each
Note sold by the Company as a result of a solicitation made by such Agent, as an
agent of the Company, as set forth in Schedule A hereto unless otherwise agreed
in the applicable Terms Agreement.
(c) Administrative Procedures. The purchase price, interest rate or
formula, maturity date and other terms of the Notes (as applicable), as
specified in the applicable Terms Agreement, in the form attached hereto as
Exhibit A, shall be agreed upon by the Company and the applicable Agent or
Agents and specified in a pricing supplement to the Prospectus (each, a "Pricing
Supplement") to be prepared by the Company in connection with each sale of
Notes. Except as may be otherwise specified in the applicable Terms Agreement
and the applicable Pricing Supplement, the Notes will be issued in denominations
of U.S. $1,000 or any larger amount that is an integral multiple of U.S. $1,000.
Administrative procedures with respect to the issuance and sale of the Notes
shall be agreed upon from time to time by the Company, the Agents and the
Trustee (the "Procedures"). The Agents and the Company agree to perform, and the
Company agrees to cause the Trustee to agree to perform, their respective duties
and obligations specifically provided to be performed by them in the Procedures.
15
SECTION 4. Covenants of the Company.
The Company covenants with the Agents as follows:
(a) The Company will file each Statutory Prospectus pursuant to and in
accordance with Rule 424(b) within the time period prescribed therein. Prior to
the termination of the offering of any tranche of Notes, the Company will not
file any amendment to the Registration Statement or supplement to the Prospectus
or Statutory Prospectus (except for a supplement relating to an offering of
securities other than the Notes) unless the Company has furnished to the related
Agent(s) a copy for their review prior to filing and will not file any such
proposed amendment or supplement to which such Agent(s) may reasonably object.
Subject to the foregoing sentence, the Company will cause each supplement to the
Prospectus or Statutory Prospectus to be filed with the Commission as required
pursuant to Rule 424 (without reliance on Rule 424(b)(8) of the 1933 Act
Regulations ("Rule 424(b)(8)")). The Company will promptly advise such Agent(s)
(i) when each supplement to the Prospectus or Statutory Prospectus shall have
been filed with the Commission pursuant to Rule 424 (the filing of any such
supplement on ▇▇▇▇▇ shall be deemed notice by the Company to the Agents), (ii)
when any amendment to the Registration Statement shall have become effective
(for so long as the Registration Statement is an "automatic shelf registration
statement" within the meaning of Rule 405, the filing of any such amendment on
▇▇▇▇▇ shall be deemed notice of effectiveness by the Company to the Agents),
(iii) of any request by the Commission for any amendment to the Registration
Statement or amendment to or supplement to the Prospectus or Statutory
Prospectus or for any additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that purpose
or of any examination pursuant to Section 8(e) of the 1933 Act with respect to
the Registration Statement, (v) if the Company becomes the subject of a
proceeding under Section 8A of the 1933 Act in connection with the offering of
the Notes, (vi) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Notes for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose and (vii)
any change in the rating assigned by any nationally recognized statistical
rating organization to any debt securities of the Company or the public
announcement by any nationally recognized statistical rating organization that
it has under surveillance or review, with possible negative implications, its
rating of any debt securities of the Company. The Company will make every
reasonable effort to prevent the issuance of any such stop order and, if any
stop order is issued, to obtain the lifting thereof as soon as reasonably
possible. The Company shall pay the required Commission filing fees relating to
the Notes within the time required by Rule 456(b)(1)(i) of the 1933 Act
Regulations without regard to the proviso therein and otherwise in accordance
with Rules 456(b) and 457(r) of the 1933 Act Regulations (including, if
applicable, by updating the "Calculation of Registration Fee" table in
accordance with Rule 456(b)(1)(ii) of the 1933 Act Regulations either in a
post-effective amendment to the Registration Statement or on the cover page of a
prospectus filed pursuant to Rule 424(b)).
16
(b) The Registration Statement is an "automatic shelf registration
statement," as defined in Rule 405, that initially became effective within three
years of the date hereof. If immediately prior to the third anniversary (the
"Renewal Deadline") of the initial effective date of the automatic shelf
registration statement relating to the Notes, any of the Notes remain unsold by
the Agent(s), the Company will, prior to the Renewal Deadline, file, if it has
not already done so and is eligible to do so, a new automatic shelf registration
statement relating to the Notes, in a form satisfactory to the Agents. If the
Company is no longer eligible to file an automatic shelf registration statement,
the Company will, prior to the Renewal Deadline, if it has not already done so,
file a new shelf registration statement relating to the Notes, in a form
satisfactory to the Agents, and will use its reasonable best efforts to cause
such registration statement to be declared effective within 180 days after the
Renewal Deadline. The Company will take all other reasonable action necessary or
appropriate to permit the public offering and sale of the Notes to continue as
contemplated in the expired registration statement relating to the Notes.
References herein to the Registration Statement shall include such new automatic
shelf registration statement or such new shelf registration statement, as the
case may be.
(c) If, at any time when a prospectus relating to the Notes is required
to be (or, but for the exemption in Rule 172 of the 1933 Act Regulations, would
be required to be) delivered under the 1933 Act, any event occurs as a result of
which, in the opinion of counsel for the Agents or counsel for the Company, the
Registration Statement, General Disclosure Package or the Prospectus, as then
supplemented, would include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein not misleading,
any facts or events arise which, individually or in the aggregate, would
represent a fundamental change in the information set forth in the Registration
Statement, the General Disclosure Package or the Prospectus, or if it shall be
necessary, in the opinion of either such counsel, to amend the Registration
Statement, file a new registration statement or to supplement the Prospectus to
comply with the 1933 Act or the 1934 Act or the respective rules and regulations
thereunder, the Company promptly will (i) notify such Agent to suspend the
solicitation of offers to purchase Notes (and, if so notified, such Agent shall
forthwith suspend such solicitation and cease using the Prospectus as then
amended or supplemented), (ii) prepare and file with the Commission, subject to
the first sentence of paragraph (a) of this Section 4, an amendment or
supplement or new registration statement which will correct such statement or
omission or an amendment or supplement which will effect such compliance and
(iii) will supply any such amended or supplemented Prospectus or new
registration statement to such Agent in such quantities as such Agent may
reasonably request. If such amendment or supplement, and any documents,
certificates and opinions furnished to such Agent pursuant to paragraph (i) of
this Section 4 in connection with the preparation or filing of such amendment or
supplement are reasonably satisfactory in all respects to such Agent, such Agent
will, upon the filing of such amendment or supplement with the Commission and
upon the effectiveness of an amendment to the Registration Statement (or new
registration statement) if such an amendment is required, resume such Agent's
obligation to solicit offers to purchase Notes hereunder. If, prior to the
completion of the public offer and sale of the Notes (as communicated to the
Company by the Agents), 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 any other
registration statement relating to the Notes) or Prospectus or included or would
include an untrue statement of a material fact or omitted or would omit to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances prevailing at that subsequent time, not misleading, the
Company will promptly (i) notify the applicable Agent(s) and (ii) amend or
supplement such Issuer Free Writing Prospectus to eliminate or correct such
conflict, untrue statement or omission.
17
(d) With respect to any issue of Notes, the Company represents and
agrees that, unless it obtains the prior consent of the related Agent(s), it
will not make any offer relating to the Notes that would constitute an Issuer
Free Writing Prospectus, or that would otherwise constitute a "free writing
prospectus," as defined in Rule 405, that is required to be filed with the
Commission or retained by the Company under Rule 433; provided that the prior
written consent of the Agent(s) hereto shall be deemed to have been given in
respect to the Issuer Free Writing Prospectus(es) listed in the applicable Terms
Agreement. Any such free writing prospectus consented to by such Agent(s) 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, and has complied and will comply with the requirements of Rule 433
applicable to any Permitted Free Writing Prospectus, including timely Commission
filing where required, legending and record keeping.
(e) The Company will prepare a final term sheet (the "Final Term
Sheet") relating to the final terms of the Notes, in the form attached to the
form of Terms Agreement, and will file such Final Term Sheet within the period
required by Rule 433(d)(5)(ii). Any such Final Term Sheet is an Issuer Free
Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this
Agreement. In addition to the foregoing, the Agent may, without consent of the
Company, use a free writing prospectus (including customary Bloomberg emails
containing pricing terms) that contains substantially only (a) (i) information
describing the preliminary terms of the Notes or their offering, (ii)
information that describes the final terms of the Notes or their offering and
that is included in the Final Term Sheet of the Company contemplated in the
first sentence of this subsection or (iii) information permitted by Rule 134
under the 1933 Act or (b) other information that is not "issuer information," as
defined in Rule 433.
(f) The Company will deliver to the Agents as many signed and conformed
copies of the Registration Statement (as originally filed) and of each amendment
thereto (including exhibits filed therewith or incorporated by reference therein
and documents incorporated by reference in the Prospectus) as the Agents
reasonably request. The Company will furnish to the Agents as many copies of the
Prospectus and any Issuer Free Writing Prospectus (in each case, as amended or
supplemented) as the Agents reasonably request so long as the Agents are
required to deliver a Prospectus in connection with sales or solicitations of
offers to purchase the Notes.
(g) As soon as practicable, but in any event not later than 16 months
after any Settlement Date, the Company will make generally available to its
security holders and to the Agents an earnings statement covering a period of at
least 12 months beginning after the effective date of the Registration Statement
and otherwise satisfying the provisions of and provide the benefits contemplated
by Section 11(a) of the 1933 Act and Rule 158 under the 1933 Act.
18
(h) The Company will endeavor, in cooperation with the Agents, to
qualify the Notes for offering and sale under the applicable securities laws of
such states and other jurisdictions of the United States as the Agents may
designate, and will maintain such qualifications in effect for as long as may be
required for the distribution of the Notes; provided, however, that the Company
shall not be obligated to file any general consent to service of process or to
qualify as a foreign corporation in any jurisdiction in which it is not so
qualified. The Company will file such statements and reports as may be required
by the laws of each jurisdiction in which the Notes have been qualified as above
provided. The Company will promptly advise the Agents of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Notes for sale in any such state or jurisdiction or the initiating or
threatening of any proceeding for such purpose.
(i) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act or the 1934 Act in connection with sales of the
Notes, will file all documents required to be filed with the Commission pursuant
to Sections 13, 14 or 15(d) of the 1934 Act within the time periods prescribed
by the 1934 Act and the 1934 Act Regulations.
(j) If specified by the applicable Agent or Agents in connection with a
purchase of Notes from the Company as principal, between the date of the
agreement to purchase such Notes and the Settlement Date with respect to such
purchase, the Company will not, without the prior written consent of such Agent
or Agents, offer or sell, grant any option for the sale of, or enter into any
agreement to sell, any debt securities of the Company (other than the Notes that
are to be sold pursuant to such agreement, commercial paper in the ordinary
course of business or assumptions of mortgages on acquired properties).
(k) The Company will continue to elect to qualify as a "real estate
investment trust" under the Code and will use its best efforts to continue to
qualify as a "real estate investment trust" for so long as the Company's board
of directors deems it in the best interest of the Company and its shareholders
to remain so qualified.
(l) The Company will use the net proceeds received by it from the
issuance and sale of the Notes in the manner specified in the Prospectus.
SECTION 5. Conditions of Agents' Obligations.
The obligations of the Agents to purchase Notes as principal and to
solicit offers to purchase the Notes as agent of the Company, and the
obligations of any purchasers of the Notes sold through an Agent as agent, will
be subject to the accuracy of the representations and warranties on the part of
the Company herein and to the accuracy of the statements of the Company's
officers made in any certificate furnished pursuant to the provisions hereof, to
the performance and observance by the Company of all its covenants and
agreements herein contained and to the following additional conditions
precedent:
(a) Effectiveness of Registration Statement. At the Settlement Date,
(i) no stop order suspending the effectiveness of the Registration Statement
shall have been issued under the 1933 Act and no proceedings therefor have been
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Agents, (ii) each preliminary
prospectus and the Prospectus containing the Rule 430B Information shall have
been filed with the Commission in the manner and within the time period required
by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment
providing such information shall have been filed and become effective in
accordance with the requirements of Rule 430B), (iii) the Final Term Sheet and
any other material required to be filed by the Company pursuant to Rule 433(d)
of the 1933 Act Regulations shall have been filed with the Commission within the
applicable time periods prescribed for such filings under such Rule 433, (iv)
the Company shall have paid the required Commission filing fees relating to
Notes of a particular tranche within the time period required by Rule
456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein
and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act
Regulations and, if applicable, shall have updated the "Calculation of
Registration Fee" table in accordance with Rule 456(b)(1)(ii) either in a
post-effective amendment to the Registration Statement or on the cover page of a
prospectus filed pursuant to Rule 424(b), (v) the rating assigned by any
nationally recognized statistical rating organization to any debt securities of
the Company as of the date of the applicable Terms Agreement shall not have been
lowered or withdrawn since such date nor shall any such rating organization have
publicly announced that it has any debt securities of the Company under
surveillance or review and (vi) there shall not have come to your attention any
facts that would cause you to believe that the Prospectus, at the time it was
required to be delivered or made available to purchasers of Notes of a
particular tranche, included an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements therein, in
light of the circumstances existing at such time, not misleading.
19
(b) Legal Opinions. On the date hereof, the Agents shall have received
the following legal opinions, dated as of the date hereof and in form and
substance satisfactory to the Agents:
(1) Opinion of Company Counsel. The favorable opinion of
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Company, to the effect that:
(i) The Indenture is the valid and legally binding
agreement of the Company, enforceable against the Company in
accordance with its terms.
(ii) The Notes, when executed, issued and
authenticated in accordance with the terms of the Indenture
and delivered to and paid for by the Agents in accordance with
the terms of the applicable Terms Agreement, will be valid and
legally binding obligations of the Company, enforceable in
accordance with their terms.
(iii) The statements in the Prospectus and the
Prospectus Supplement under the caption "Description of
Notes," insofar as they purport to describe or summarize
certain provisions of the Notes or the Indenture, are accurate
descriptions or summaries in all material respects.
(iv) The Indenture has been qualified under the 1939
Act.
20
(v) The Registration Statement has become effective
under the 1933 Act; any required filing of the Statutory
Prospectus and the final pricing supplement relating to the
Notes of a particular tranche, pursuant to Rule 424(b) has
been made in the manner and within the time period required by
Rule 424(b) (assuming the date it is "first used" within the
meaning of Rule 424(b) is the date of the pricing of the
Notes). With the consent from the Agents and their counsel,
and, to the best of such counsel's knowledge, based solely on
telephonic advice from the Commission, no stop order
suspending the effectiveness of the Registration Statement has
been issued under the 1933 Act and no proceedings therefore
have been initiated by the Commission.
(vi) The Registration Statement and the Prospectus,
as of their respective effective or issue dates, appeared on
their face to be appropriately responsive in all material
respects to the requirements for registration statements on
Form S-3 under the 1933 Act and the 1933 Act Regulations; it
being understood, however, that no opinion need be rendered
with respect to Regulation S-T, the Statement of Eligibility
of the trustee on Form T-1 or the financial statements,
schedules, or other financial and statistical data included
in, incorporated by reference in, or omitted from, the
Registration Statement or the Prospectus; and it being
understood, further, that in passing upon the compliance as to
form of the Registration Statement and the Prospectus, such
counsel may assume that the statements made therein are
correct and complete.
(vii) Each document incorporated by reference in the
Registration Statement or the Prospectus or any Prospectus
Supplement, if any, as of its respective filing date, appeared
on its face to be appropriately responsive in all material
respects to the applicable requirements for reports on Forms
10-K, 10-Q and 8-K, and definitive proxy statements under
Regulation 14A, as the case may be, under the 1934 Act and the
1934 Act Regulations; it being understood, however, that no
opinion need be rendered with respect to Regulation S-T, the
Statement of Eligibility of the trustee on Form T-1 or the
financial statements, schedules, or other financial and
statistical data included in, incorporated by reference in, or
omitted from, the Registration Statement or the Prospectus;
and it being understood, further, that in passing upon the
compliance as to form of such incorporated documents, such
counsel may assume that the statements made therein are
correct and complete.
(viii) The execution and delivery of this Agreement
and the applicable Terms Agreement and the issuance and sale
of the Notes by the Company to the Agents pursuant to the
applicable Terms Agreement on the date thereof, do not require
any consents, approvals, or authorizations, to be obtained by
the Company with, any governmental authority under any federal
or New York State statute, rule or regulation applicable to
the Company that have not been obtained or made except such as
may be required under the 1933 Act, the 1934 Act, the 1939 Act
or the rules and regulations of the Commission thereunder and
state securities or real estate syndication laws.
21
(ix) The statements contained in the Prospectus under
the captions "Material United States Federal Income Tax
Considerations to us of our REIT Election" and "Certain United
States Federal Income Tax Considerations", insofar as they
purport to summarize certain provisions of the statutes and
regulations referred to therein, are accurate summaries in all
material respects.
(x) The Company is not, and immediately after giving
effect to the sale of the Notes in accordance with this
Agreement and the application of the proceeds as described in
the Prospectus under the caption "Use of Proceeds," will not
be required to be registered as an "investment company" within
the meaning of the 1940 Act.
(xi) Commencing with the Company's taxable year
beginning January 1, 1992, the Company has been organized in
conformity with the requirements for qualification as a "real
estate investment trust", and its method of operation will
enable it to meet the requirements for qualification and
taxation as a "real estate investment trust" under the Code,
provided that such counsel's opinion as to this matter shall
be conditioned upon certain representations as to factual
matters made by the Company to such counsel as described
therein.
The opinions rendered in (i) and (ii) of subsection
(b)(1) are subject to the following exceptions, limitations
and qualifications: (i) the effect of bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium or other
similar laws relating to or affecting the rights and remedies
of creditors; (ii) the effect of general principles of equity,
whether enforcement is considered in a proceeding in equity or
at law (including the possible unavailability of specific
performance or injunctive relief), concepts of materiality,
reasonableness, good faith and fair dealing, and the
discretion of the court before which any proceeding therefor
may be brought; (iii) the unenforceability under certain
circumstances under law or court decisions of provisions
providing for the indemnification of or contribution is
contrary to public policy; or (iv) no opinion need be rendered
concerning the enforceability of the waiver of rights or
defenses contained in Section 514 of the Indenture.
(2) The favorable opinion of ▇▇▇▇▇▇▇ LLP, Maryland counsel to
the Company, to the effect that:
(i) The Company is a corporation duly incorporated
and existing under the laws of the State of Maryland and is in
good standing with the State Department of Assessments and
Taxation of Maryland.
(ii) The Company has the corporate power to own,
lease and operate its properties and to conduct its business
as described in the Registration Statement, the General
Disclosure Package and the Prospectus and to enter into and
perform its obligations under this Agreement and the
applicable Terms Agreement.
22
(iii) The execution and delivery of this Agreement
and the applicable Terms Agreement have been duly authorized
by the Company. This Agreement and the applicable Terms
Agreement have been duly executed and, so far as is known to
such counsel, delivered by the Company to the Agents.
(iv) The execution of the Indenture has been duly
authorized by the Company and the Indenture has been executed
and, so far as is known to such counsel, delivered by the
Company.
(v) The execution, delivery and performance of the
Notes have been duly authorized by the Company and the Notes
have been duly executed and, so far as is known to such
counsel, delivered by the Company.
(3) The favorable opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., counsel
for the Company, to the effect that:
(i) To the best of his knowledge and information,
there are no legal or governmental proceedings pending or
threatened which are required to be disclosed in the General
Disclosure Package and the Prospectus, other than those
disclosed therein, and all pending legal or governmental
proceedings to which the Company or any of its subsidiaries is
a party or of which any of the property of the Company or its
subsidiaries is the subject which are not described in the
Prospectus, including ordinary routine litigation incidental
to the business, are, considered in the aggregate, not
material.
(ii) The Company is duly qualified as a foreign
corporation to transact business and is in good standing in
each jurisdiction in which it owns or leases real property,
except where the failure to so qualify would not have a
material adverse effect on the condition, financial or
otherwise, or on the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as
one enterprise.
(iii) To the best of his knowledge and information,
there are no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to be
described or referred to in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration
Statement other than those described or referred to therein or
filed as exhibits thereto, the descriptions thereof or
references thereto are correct, and, to the best of his
knowledge and information, no default exists in the due
performance or observance of any material obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage (except as otherwise described in the
Prospectus), loan agreement, note, lease or other instrument
so described, referred to or filed which would have a material
adverse effect on the condition, financial or otherwise, or on
the earnings, business or business prospects of the Company
and its subsidiaries considered as one enterprise.
23
(iv) To the best of his knowledge and information,
the execution and delivery of this Agreement, the applicable
Terms Agreement and the Indenture and the consummation of the
transactions contemplated herein and therein and compliance by
the Company with its obligations hereunder and thereunder will
not conflict with or constitute a breach of, or default under,
or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any
of its subsidiaries pursuant to any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to
which the Company or any of its subsidiaries is a party or by
which it or any of them may be bound or to which any of the
property or assets of the Company or any of its subsidiaries
is subject, nor will such action result in violation of the
provisions of the charter or by-laws of the Company or any
applicable law, administrative regulation or administrative or
court order or decree.
(v) Each of the partnership and joint venture
agreements to which the Company or any of its subsidiaries is
a party, and which relates to real property described in the
Prospectus, has been duly authorized, executed and delivered
by such applicable party and constitutes the valid agreement
thereof, enforceable in accordance with its terms, except as
limited by bankruptcy and general equitable principles and the
execution, delivery and performance of any of such agreements
did not, at the time of execution and delivery, and does not
constitute a breach of, or default under, the charter or
by-laws of such party or any material contract, lease or other
instrument to which such party is a party or by which its
properties may be bound or any law, administrative regulation
or administrative or court decree.
(vi) The Company, its respective subsidiaries and its
Related Entities hold title to the properties and assets
described in the Prospectus, subject only to the liens and
encumbrances securing indebtedness reflected in the Prospectus
and such other liens, encumbrances and matters of record which
do not materially and adversely affect the value of such
properties and assets considered in the aggregate.
(vii) Each Significant Subsidiary of the Company has
been duly incorporated and is validly existing as a
corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and, to
the best of his knowledge and information, is duly qualified
as a foreign corporation to transact business and is in good
standing in each jurisdiction in which it owns or leases real
property, except where the failure to so qualify would not
have a material adverse effect on the condition, financial or
otherwise, or on the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as
one enterprise; and all of the issued and outstanding capital
stock of each such Significant Subsidiary has been duly
authorized and validly issued, is fully paid and
non-assessable and, to the best of their knowledge and
information, is owned by the Company, directly or through
subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity, except
for security interests granted in respect of indebtedness of
the Company or any of its subsidiaries and described in the
Prospectus.
24
(4) Opinion of Counsel to the Agents. The favorable opinion of
Sidley Austin LLP, counsel to the Agents, covering the matters referred
to in subsection (b)(1) under the subheadings (i) to (vi) inclusive and
in subsection (b)(2) under the subheadings (i) and (iii) of this
Section 5.
(5) Disclosure Statement. In giving their opinions required by
subsections (b)(1) and (b)(4), respectively, of this Section ▇, ▇▇▇▇▇▇
& ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall each additionally state that
nothing has come to their attention that would lead them to believe
that the Registration Statement or any amendment thereto (except for
financial statements and schedules and other financial data included or
incorporated by reference therein or omitted therefrom and the Form
T-1, as to which they need make no statement), at the time such
Registration Statement or any such amendment became effective,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; that the Registration Statement,
including the Rule 430B Information (except for financial statements
and schedules and other financial data included or incorporated by
reference therein or omitted therefrom and the Form T-1, as to which
they need make no statement), at each deemed effective date with
respect to the Agents pursuant to Rule 430B(f)(2) of the 1933 Act
Regulations, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; or that the
Prospectus or any amendment or supplement thereto (except for financial
statements and schedules and other financial data included or
incorporated by reference therein or omitted therefrom and the Form
T-1, as to which they need make no statement), at the time the
Prospectus was issued, at the time any such amended or supplemented
prospectus was issued or at such Settlement Date, included or includes
an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
In addition, nothing has come to their attention that would lead them
to believe that the General Disclosure Package, other than the
financial statements and schedules and other financial data included or
incorporated by reference therein or omitted therefrom, as to which
they need make no statement, as of the Applicable Time, contained 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
circumstances under which they were made, not misleading. With respect
to statements contained in the General Disclosure Package, any
statement contained in any of the constituent documents shall be deemed
to be modified or superseded to the extent that any information
contained in subsequent constituent documents modifies or replaces such
statement.
25
(6) In giving their opinions, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, Esq., or other counsel satisfactory to the Agents, and Sidley
Austin LLP may rely, (i) as to matters involving the laws of the State
of Maryland upon the opinion of ▇▇▇▇▇▇▇ LLP (or other counsel
reasonably satisfactory to counsel for the Agents in form and substance
satisfactory to counsel for the Agents), (ii) as to all matters of
fact, upon certificates and written statements of officers and
employees of and accountants for the Company and (iii) as to the
qualification and good standing of the Company or any of its
subsidiaries to do business in any state or jurisdiction, upon
certificates of appropriate government officials or opinions of counsel
in such jurisdictions.
(c) Officer's Certificate. On the date hereof, the Agents shall have
received a certificate of the Chief Executive Officer, President or Vice
President of the Company and the chief financial officer or chief accounting
officer of the Company, dated as of the date hereof, to the effect that (i)
since the respective dates as of which information is given in the Registration
Statement and the Statutory Prospectus or since the date of any agreement by one
or more Agents to purchase Notes as principal, there has not been any material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, (ii) the representations and warranties of the Company contained in
Section 2 hereof are true and correct with the same force and effect as though
expressly made at and as of the date of such certificate, and (iii) the Company
has performed or complied with all agreements and satisfied all conditions on
its part to be performed or satisfied at or prior to the date of such
certificate.
(d) Comfort Letter of PricewaterhouseCoopers LLP. On the date hereof,
the Agents shall have received a letter from PricewaterhouseCoopers LLP dated as
of the date hereof and in form and substance satisfactory to the Agents, to the
effect that:
(i) They are independent accountants with respect to the
Company within the meaning of the 1933 Act and the 1933 Act
Regulations.
(ii) It is their opinion that the audited consolidated
financial statements and related financial statement schedules of the
Company and the historical summaries of revenue and certain operating
expenses for the properties related thereto included or incorporated by
reference in the Registration Statement or the Statutory Prospectus and
audited by them and covered by their opinions therein comply as to form
in all material respects with the applicable accounting requirements of
the 1933 Act and the 1933 Act Regulations.
26
(iii) They have performed limited procedures, not constituting
an audit, including a reading of the latest available unaudited interim
consolidated financial statements of the Company, a reading of the
minute books of the Company, inquiries of certain officials of the
Company who have responsibility for financial and accounting matters, a
review of interim financial information in accordance with standards
established by the American Institute of Certified Public Accountants
in Statement on Audited Standards No. 100, Interim Financial
Information ("SAS 100") and such other inquiries and procedures as may
be specified in such letter, nothing came to their attention that
caused them to believe that (1) the unaudited financial statements and
financial statement schedules of the Company included or incorporated
by reference in the Registration Statement or the Statutory Prospectus
do not comply as to form in all material respects with the applicable
accounting requirements of the 1934 Act and the 1934 Act Regulations or
are not in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the audited
financial statements included or incorporated by reference in the
Registration Statement or the Statutory Prospectus or (2) at a
specified date not more than five business days prior to the date of
such letter, there has been any change in the capital stock of the
Company or in the consolidated long term debt of the Company or any
decrease in the net assets of the Company, as compared with the amounts
shown in the most recent consolidated balance sheet included or
incorporated by reference in the Registration Statement or the
Statutory Prospectus or, during the period from the date of the most
recent consolidated statement of operations included or incorporated by
reference in the Registration Statement or the Statutory Prospectus to
a specified date not more than five business days prior to the date of
such letter, there were any decreases, as compared with the
corresponding period in the preceding year, in consolidated revenues,
or decrease in net income or net income per share of the Company,
except in all instances for changes, increases or decreases which the
Registration Statement or the Statutory Prospectus disclose have
occurred or may occur.
(iv) In addition to the audit referred to in their opinions
and the limited procedures referred to in clause (iii) above, they have
carried out certain specified procedures, not constituting an audit,
with respect to certain amounts, percentages and financial information
which are included or incorporated by reference in the Registration
Statement or the Prospectus and which are specified by the Agents, and
have found such amounts, percentages and financial information to be in
agreement with the relevant accounting, financial and other records of
the Company and its subsidiaries identified in such letter.
(e) Comfort Letter of Applicable Accountants. On the date hereof, the
Agents shall have received a letter from the applicable independent accountants,
dated as of the date hereof and in form and substance satisfactory to the
Agents, to the effect that (i) it is their opinion that any historical summaries
of revenue and certain operating expenses for the properties related thereto
included in each Form 8-K and each Form 8-K/A of the Company incorporated by
reference in the Registration Statement or the Statutory Prospectus and audited
by them and covered by their opinions therein comply in form in all material
respects with the applicable accounting requirements of the 1933 Act and the
1933 Act Regulations and (ii) if clause (i) is applicable, they are independent
accountants with respect to the Company within the meaning of the 1933 Act and
the 1933 Act Regulations.
27
(f) Other Documents. On the date hereof and on each Settlement Date,
counsel to the Agents shall have been furnished with such documents and opinions
as such counsel may reasonably require for the purpose of enabling such counsel
to pass upon the issuance and sale of Notes as herein contemplated and related
proceedings, or in order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of Notes as herein contemplated shall be satisfactory in
form and substance to the Agents and to counsel to the Agents.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the applicable Agent or Agents by notice to the Company at any time and any
such termination shall be without liability of any party to any other party,
except that the covenant regarding provision of an earnings statement set forth
in Section 4(g) hereof, the provisions concerning payment of expenses under
Section 10 hereof, the indemnity and contribution agreement set forth in
Sections 8 and 9 hereof, the provisions concerning the representations,
warranties and agreements to survive delivery of Section 11 hereof, the
provisions relating to governing law and forum set forth in Section 14 and the
provisions relating to parties set forth in Section 15 hereof shall remain in
effect.
SECTION 6. Delivery of and Payment for Notes Sold through an Agent.
Delivery of Notes sold through an Agent as agent shall be made by the
Company to such Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, such Agent shall promptly notify the Company and deliver
such Note to the Company and, if such Agent has theretofore paid the Company for
such Note, the Company will promptly return such funds to such Agent. If such
failure occurred for any reason other than default by such Agent in the
performance of its obligations hereunder, the Company will reimburse such Agent
on an equitable basis for its loss of the use of the funds for the period such
funds were credited to the Company's account.
SECTION 7. Additional Covenants of the Company.
The Company covenants and agrees with the Agents that:
(a) Reaffirmation of Representations and Warranties. Each acceptance by
the Company of an offer for the purchase of Notes (whether to one or more Agents
as principal or through an Agent as agent), and each delivery of Notes (whether
to one or more Agents as principal or through an Agent as agent), shall be
deemed to be an affirmation that the representations and warranties of the
Company contained in this Agreement and in any certificate theretofore delivered
to the Agents pursuant hereto are true and correct at the time of such
acceptance or sale, as the case may be, and an undertaking that such
representations and warranties will be true and correct at the time of delivery
to such Agent or Agents or to the purchaser or its agent, as the case may be, of
the Note or Notes relating to such acceptance or sale, as the case may be, as
though made at and as of each such time (and it is understood that such
representations and warranties shall relate to the Registration Statement, the
General Disclosure Package and the Prospectus as amended and supplemented to
each such time).
28
(b) Subsequent Delivery of Certificates. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for a change in the interest
rate or formula applicable to the Notes or similar changes, and other than by an
amendment or supplement which relates exclusively to the issuance of securities
other than the Notes), (ii) there is filed with the Commission any document
incorporated by reference into the Registration Statement, the General
Disclosure Package or the Prospectus (other than any Current Report on Form 8-K
relating exclusively to the issuance of securities other than the Notes), (iii)
(if required in connection with the purchase of Notes from the Company by one or
more Agents as principal) the Company sells Notes to such Agent or Agents as
principal or (iv) if the Company issues and sells Notes in a form not previously
certified to the Agents by the Company, the Company shall furnish or cause to be
furnished to the Agent(s), forthwith a certificate dated the date of filing with
the Commission of such supplement or document, the date of effectiveness of such
amendment or supplement, as applicable, or the date of such sale, as the case
may be, in form satisfactory to the Agent(s) to the effect that the statements
contained in the certificate referred to in Section 5(c) hereof which were last
furnished to the Agents are true and correct at the time of the filing or
effectiveness of such amendment or supplement, as applicable, or the time of
such sale, as the case may be, as though made at and as of such time (except
that such statements shall be deemed to relate to the Registration Statement,
the General Disclosure Package and the Prospectus as amended and supplemented to
such time) or, in lieu of such certificate, a certificate of the same tenor as
the certificate referred to in Section 5(c) hereof, modified as necessary to
relate to the Registration Statement, the General Disclosure Package and the
Prospectus as amended and supplemented to the time of delivery of such
certificate.
(c) Subsequent Delivery of Legal Opinions. (a) Each time that (i) the
Registration Statement or the Statutory Prospectus shall be amended or
supplemented (other than by an amendment or supplement providing solely for a
change in the interest rate or formula applicable to the Notes or similar
changes or solely for the inclusion of additional financial information, and
other than by an amendment or supplement which relates exclusively to the
issuance of securities other than the Notes), (ii) there is filed with the
Commission any document incorporated by reference into the Registration
Statement, the General Disclosure Package or the Prospectus (other than any
Current Report on Form 8-K, unless the Agents shall otherwise specify), (iii)
(if required in connection with the purchase of Notes from the Company by one or
more Agents as principal) the Company sells Notes to such Agent or Agents as
principal or (iv) the Company issues and sells Notes in a form not previously
certified to the Agents by the Company, then, the Company shall furnish or cause
to be furnished forthwith to the Agent(s) and to counsel to the Agents the
written opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Company, ▇▇▇▇▇▇▇, LLP,
Maryland counsel to the Company and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, counsel for the Company
or other counsel satisfactory to the Agent(s), dated the date of filing with the
Commission of such supplement or document, or the date of effectiveness of such
amendment or supplement, as applicable, or the date of such sale, as the case
may be, in form and substance satisfactory to the Agent(s), of the same tenor as
the opinion referred to in Section 5(b)(1), 5(b)(2) and 5(b)(3), respectively,
hereof, but modified, as necessary, to relate to the Registration Statement, the
Prospectus and the Disclosure Package, as applicable, as amended and
supplemented to the time of delivery of such opinion or, in lieu of such
opinion, counsel last furnishing such opinion to the Agents shall furnish the
Agent(s) with a letter substantially to the effect that the Agent(s) may rely on
such last opinion to the same extent as though it was dated the date of such
letter authorizing reliance (except that statements in such last opinion shall
be deemed to relate to the Registration Statement, the Prospectus and the
Disclosure Package, as applicable, as amended and supplemented to the time of
delivery of such letter authorizing reliance); provided, however, that counsel
need not render the opinion required under Section 5(b)(1)(xi) upon the filing
of any Quarterly Report on Form 10-Q which does not include information relating
to such tax matters, unless the Agents shall otherwise specify.
29
(d) Subsequent Delivery of Comfort Letters. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information (other than by an amendment or
supplement which relates exclusively to the issuance and/or offering of
securities other than the Notes), (ii) there is filed with the Commission any
document incorporated or deemed incorporated by reference into the Registration
Statement or the Statutory Prospectus which contains additional financial
information, or (iii) (if required in connection with the purchase of Notes by
one or more Agents as principal) the Company sells Notes to such Agent or Agents
as principal, the Company shall cause PricewaterhouseCoopers LLP and other
applicable independent accountants forthwith to furnish to the Agent(s) a
letter, dated the date of filing with the Commission or the date of
effectiveness of such amendment or supplement, as applicable, with the
Commission, or the date of such sale, as the case may be, in form satisfactory
to the Agent(s), of the same tenor, in the case of PricewaterhouseCoopers LLP,
as the portions of the letter referred to in clauses (i) and (ii) of Section
5(d) hereof but modified to relate to the Registration Statement, the Prospectus
and the General Disclosure Package as amended and supplemented to the date of
such letter, and of the same general tenor as the portions of the letter
referred to in clauses (iii) and (iv) of said Section 5(d) with such changes as
may be necessary to reflect changes in the financial statements and other
information derived from the accounting records of the Company and, in the case
of the applicable independent accountants, if any, as the letter referred to in
Section 5(e).
SECTION 8. Indemnification.
(a) Indemnification of the Agent(s). The Company agrees to indemnify
and hold harmless each Agent and each person, if any, who controls such Agent
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto) including the Rule
430B Information, or the omission or alleged omission therefrom of a
material fact necessary to make the statements therein not misleading
or arising out of any untrue statement or alleged untrue statement of a
material fact included in the Prospectus, any preliminary prospectus,
any Issuer Free Writing Prospectus (or any amendment or supplement
thereto), or any "issuer information" (as defined in Rule 433) filed or
required to be filed pursuant to Rule 433(d), or the omission or
alleged omission therefrom of a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
30
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, if any such settlement
is effected with the written consent of the Company;
(iii) against any and all expense whatsoever (including the
fees and disbursements of counsel chosen by such Agent), as incurred,
which was reasonably incurred in investigating, preparing or defending
against any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above.
provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by any Agent expressly for use in the Registration Statement (or any
amendment thereto), including the Rule 430B Information, the Prospectus (or any
amendment or supplement thereto), any preliminary prospectus or any Issuer Free
Writing Prospectus or made in reliance upon the Trustee's Statement of
Eligibility filed as an exhibit to the Registration Statement.
(b) Indemnification of Company. Each Agent severally agrees to
indemnify and hold harmless the Company, its directors, each of its officers who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto),
including the Rule 430B Information, or any preliminary prospectus, the
Prospectus (or any amendment or supplement thereto) or any Issuer Free Writing
Prospectus in reliance upon and in conformity with written information furnished
to the Company by the Agents expressly for use therein.
(c) Actions Against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 8(a) hereof,
counsel to the indemnified parties shall be selected by the applicable Agent(s)
and shall be reasonably acceptable to the Company and, in the case of parties
indemnified pursuant to Section 8(b) hereof, counsel to the indemnified shall be
selected by the Company. An indemnifying party may participate at its own
expense in the defense of any such action; provided, however, that counsel to
the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
31
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 8 or 9 hereof (whether or not the indemnified parties are
actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
SECTION 9. Contribution.
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 8 hereof
is for any reason held to be unavailable to or insufficient to hold harmless the
indemnified parties although applicable in accordance with its terms, the
Company and the Agents shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by said indemnity
agreement incurred by the Company and the Agents, as incurred, in such
proportions that each applicable Agent is responsible for that portion
represented by the percentage that the commission or underwriting discount
received by such Agent bears to the total sales price from the sale of the Notes
sold to or through such Agent that were the subject of the claim for
indemnification, and the Company is responsible for the balance; provided,
however, that (i) no Agent shall be required to contribute any amount in excess
of the amount by which the total discount or commission received by such Agent
in connection with the offering of the Notes that were the subject of the claim
for indemnification exceeds the amount of any damages which such Agent has
otherwise been required to pay by reason of any applicable untrue or alleged
untrue statement or omission or alleged omission and (2) no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇
▇▇▇) 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 an Agent within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act shall have the same rights to contribution as such
Agent, and each director of the Company, each officer of the Company who signed
the Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as the Company.
32
SECTION 10. Payment of Expenses.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) The preparation, filing, printing and delivery of the Registration
Statement and all amendments thereto and the Prospectus and any amendments or
supplements thereto;
(b) The preparation, printing and delivery of this Agreement;
(c) The preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the eligibility and issuance of
Notes in book-entry form and the cost of obtaining CUSIP or other identification
numbers for the Notes;
(d) The preparation, printing and delivery of each Issuer Free Writing
Prospectus to investors or prospective investors;
(e) The fees and disbursements of the Company's accountants, counsel
and other advisors or agents (including any calculation agent or exchange rate
agent) and of the Trustee and its counsel;
(f) The reasonable fees and disbursements of counsel to the Agents
incurred in connection with the establishment of the Program and incurred from
time to time in connection with the transactions contemplated hereby;
(g) The qualification of the Notes under state securities laws in
accordance with the provisions of Section 4(k) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Agents in connection
therewith and in connection with the preparation of any Blue Sky or Legal
Investment Survey;
(h) The fees charged by nationally recognized statistical rating
organizations for the rating of the Program and the Notes;
(i) The fees and expenses incurred in connection with any listing of
Notes on a securities exchange;
(j) The filing fees incident to, and the reasonable fees and
disbursements of counsel to the Agents in connection with, the review, if any,
by the National Association of Securities Dealers, Inc.; and
(k) Any advertising and other out-of-pocket expenses of the Agents
incurred with the approval of the Company.
SECTION 11. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
subsidiaries submitted pursuant hereto or thereto shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
the Agents or any controlling person of an Agent, or by or on behalf of the
Company, and shall survive each delivery of and payment for any of the Notes.
33
SECTION 12. Termination.
(a) Termination of this Agreement. This Agreement (excluding any
agreement hereunder by one or more Agents to purchase Notes from the Company as
principal) may be terminated for any reason, at any time by either the Company
or an Agent, as to itself, upon the giving of 10 days' prior written notice of
such termination to the other party hereto.
(b) Termination of Agreement to Purchase Notes as Principal. The
applicable Agent or Agents may terminate any agreement hereunder by such Agent
or Agents to purchase Notes from the Company as principal, immediately upon
notice to the Company, at any time prior to the Settlement Date relating
thereto, if (i) there has been, since the date of such agreement or since the
respective dates as of which information is given in the Registration Statement,
the Prospectus or the General Disclosure Package, any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
there has occurred any material adverse change in the financial markets in the
United States or if such Notes are denominated and/or payable in, or indexed to,
one or more foreign or composite currencies, in the international financial
markets, or any outbreak of hostilities or escalation thereof or other national
or international calamity or crisis, in each case the effect of which is such as
to make it, in the judgment of such Agent or Agents, impracticable to market
such Notes or enforce contracts for the sale of such Notes, or (iii) trading in
any securities of the Company has been suspended or materially limited by the
Commission or a national securities exchange, or if trading generally on either
the American Stock Exchange or the New York Stock Exchange shall have been
suspended or materially limited, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices for securities have been required, by
either of said exchanges or by such system or by order of the Commission or any
other governmental authority, or (iv) a banking moratorium has been declared by
either Federal or New York authorities or by the relevant authorities in the
country or countries of origin of any foreign or composite currency or
currencies in which the Notes are denominated or payable, or (v) the rating
assigned by any nationally recognized statistical rating organization to the
Program or any debt securities (including the Notes) of the Company as of the
date of such agreement shall have been lowered or withdrawn since that date or
if any such rating organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of the
Program or any such debt securities of the Company, or (vi) there shall have
come to the attention of such Agent or Agents any facts that would cause them to
believe that the Registration Statement, the Prospectus and the General
Disclosure Package, at the time it was required to be delivered to a purchaser
of such Notes, included an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in
light of the circumstances existing at the time of such delivery, not
misleading.
(c) General. In the event of any such termination, neither party will
have any liability to the other party hereto, except that (i) the Agents shall
be entitled to any commission earned in accordance with the third paragraph of
Section 3(b) hereof, (ii) if at the time of termination (a) any Agent shall own
any Notes purchased by it from the Company as principal with the intention of
reselling them or (b) an offer to purchase any of the Notes has been accepted by
the Company but the time of delivery to the purchaser or his agent of the Note
or Notes relating thereto has not occurred, the covenants set forth in Sections
4 and 7 hereof shall remain in effect until such Notes are so resold or
delivered, as the case may be, and (iii) the covenant set forth in Section 4(j)
hereof, the provisions of Section 10 hereof, the indemnity and contribution
agreements set forth in Sections 8 and 9 hereof, and the provisions of Sections
11, 16 and 17 hereof shall remain in effect.
34
SECTION 13. Tax Disclosure.
Notwithstanding any other provision of this Agreement or any Terms
Agreement, immediately upon commencement of discussions with respect to the
transactions contemplated hereby or by any Terms Agreement, the Company (and
each employee, representative or other agent of the Company) may disclose to any
and all persons, without limitation of any kind, the tax treatment and tax
structure of the transactions contemplated by this Agreement or any Terms
Agreement and all materials of any kind (including opinions or other tax
analyses) that are provided to the Company relating to such tax treatment and
tax structure. For purposes of the foregoing, the term "tax treatment" is the
purported or claimed federal income tax treatment of the transactions
contemplated hereby or by any Terms Agreement, and the term "tax structure"
includes any fact that may be relevant to understanding the purported or claimed
federal income tax treatment of the transactions contemplated hereby or by any
Terms Agreement
SECTION 14. Notices.
Unless otherwise provided herein, all notices required under the terms
and provisions hereof shall be in writing, either delivered by hand, by mail or
by telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
If to the Company:
Kimco Realty Corporation
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Chairman of the Board
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Agents:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
4 World Financial ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: MTN Product Management
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Banc of America Securities LLC
Bank of America Corporate Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: MTN Desk
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Securities LLC
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Mail Stop NY1-040-27-03
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: High Grade Transaction Management
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
BNY Capital Markets, Inc.
▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Credit Suisse Securities (USA) LLC
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
Attention: Short and Medium Term Finance
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, Sachs & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Corporate Syndicate
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Medium-Term Note Desk
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Manager - Continuously Offered Products
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
36
UBS Securities LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Fixed Income Syndicate
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Wachovia Capital Markets, LLC
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Debt Capital Markets
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 14.
SECTION 15. No Fiduciary Duty.
The Company acknowledges and agrees that (i) each purchase and sale, or
placement, of Notes pursuant to this Agreement and the applicable Terms
Agreement, including the determination of any price for the Notes and Agent
compensation, is an arm's-length commercial transaction between the Company, on
the one hand, and the applicable Agent(s), on the other hand, (ii) in connection
therewith and with the process leading to such transactions, each Agent is
acting solely as a principal and not the agent (except to the extent explicitly
set forth herein) or fiduciary of the Company or any of its affiliates, (iii) no
Agent has assumed any advisory or fiduciary responsibility in favor of the
Company or any of its affiliates with respect to any offering of Notes
contemplated by this Agreement and the applicable Terms Agreement or the process
leading thereto (irrespective of whether such Agent has advised or is currently
advising the Company or any of its affiliates on other matters) or any other
obligation to the Company or any of its affiliates with respect to any offering
of Notes except the obligations explicitly set forth in this Agreement and the
applicable Terms Agreement, (iv) the Agents and their respective affiliates may
be engaged in a broad range of transactions that involve interests that differ
from those of the Company and (v) no Agent has provided any legal, accounting,
regulatory or tax advice with respect to the transactions contemplated by this
Agreement and the applicable Terms Agreement, and the Company has consulted its
own legal and financial advisors to the extent it deemed appropriate.
The Company agrees that it will not claim that the Agents, or any of
them, has rendered advisory services of any nature or respect, or owes a
fiduciary or similar duty to the Company, in connection with the transaction
contemplated by this Agreement and the applicable Terms Agreement or the process
leading thereto.
This Agreement and the applicable Terms Agreement supersede all prior
agreements and understandings (whether written or oral) between the Company and
the Agent or several Agents, or any of them, with respect to the subject matter
hereof and thereof. The Company hereby waives and releases, to the fullest
extent permitted by law, any claims that the Company may have against the Agent
or several Agents with respect to any breach or alleged breach of agency or
fiduciary duty.
37
SECTION 16. Governing Law; Forum.
This Agreement and all the rights and obligations of the parties shall
be governed by and construed in accordance with the laws of the State of New
York applicable to agreements made and to be performed in such State. Any suit,
action or proceeding brought by the Company against any Agent in connection with
or arising under this Agreement shall be brought solely in the state or federal
court of appropriate jurisdiction located in the Borough of Manhattan, The City
of New York.
SECTION 17. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Agents and the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons, officers and directors referred to in
Sections 8 and 9 hereof and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect 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 their respective successors and said controlling persons, officers
and directors and their heirs and legal representatives, and for the benefit of
no other person, firm or corporation. No purchaser of Notes shall be deemed to
be a successor by reason merely of such purchase.
SECTION 18. Counterparts.
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts hereof shall
constitute a single instrument.
SECTION 19. Effect of Headings.
The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
38
If the foregoing is in accordance with the Agents' understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Distribution Agreement, along with all counterparts, will become a binding
agreement among the Agents and the Company in accordance with its terms.
Very truly yours,
KIMCO REALTY CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President - Treasurer
Confirmed and Accepted, as of the date first above written:
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
(Authorized Signatory)
BANC OF AMERICA SECURITIES LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------------
(Authorized Signatory)
BNY CAPITAL MARKETS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
(Authorized Signatory)
CREDIT SUISSE SECURITIES (USA) LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
(Authorized Signatory)
▇▇▇▇▇▇▇, SACHS & CO.
By: /s/ ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
------------------------
(Authorized Signatory)
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
(Authorized Signatory)
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
(Authorized Signatory)
UBS SECURITIES LLC UBS SECURITIES LLC
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------- ---------------------------------
(Authorized Signatory)
WACHOVIA CAPITAL MARKETS, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
(Authorized Signatory)
EXHIBIT A
FORM OF TERMS AGREEMENT
, 20
Kimco Realty Corporation
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
New Hyde Park, New York 11042-0020
Subject in all respects to the terms and conditions of the Distribution
Agreement, dated , 20 , (the "Distribution Agreement"), between Kimco
Realty Corporation (the "Company") and the Agents named therein, you, the
undersigned Agents (collectively, the "Underwriters") severally agree to
purchase certain Medium-Term Notes, Series C, of the Company on the terms
described herein and in the Company's Pricing Supplement, dated , 20 ,
to the Company's Prospectus, dated , 20 , and Prospectus Supplement,
dated , 20 (the "Notes")
The following terms, if applicable, shall be agreed to by one or more
Agents and the Company in connection with each sale of Notes:
Principal Amount: $_______
(or principal amount of foreign currency or composite
currency)
Price to Public: ___%, plus accrued interest, if any, from , 20
Underwriting Discount: ___% o
Purchase Price: ___%, plus accrued interest, if any, from , 20
Selling Concession: ___%
Reallowance: ___%
Interest Rate or Formula:
If Fixed Rate Note,
Interest Rate:
Interest Payment Dates:
If Floating Rate Note,
Interest Rate Basis(es):
If LIBOR,
LIBOR Reuters Page:
LIBOR Telerate Page:
Designated LIBOR Currency:
If CMT Rate,
Designated CMT Telerate Page:
If Telerate Page 7052:
1
Weekly Average
Monthly Average
Designated CMT Maturity Index:
Initial Interest Rate, if any:
Initial Interest Reset Date:
Spread and/or Spread Multiplier, if any:
Interest Reset Dates:
Interest Payment Dates:
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
Calculation Agent:
Day Count Convention:
Redemption Provisions:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
Repayment Provisions:
Optional Repayment Date(s):
Trade Date:
Stated Maturity Date:
Settlement Date:
Record Dates:
Form:
CUSIP Number:
Underwriters:
Specified Funds for Payment of
Purchase Price:
Time and Place of and Payment for the Notes:
Requirements to Deliver the Documents:
Allocation Among Underwriters:
Fees and Disbursements of Counsel to
the Underwriters:
2
Specified Currency:
Authorized Denominations:
Exchange Rate Agent:
Issuer Free Writing Prospectus (including the Final Term Sheet,
if applicable): See Exhibit B hereto.
Applicable Time:
Additional/Other Terms:
Also, in connection with the purchase of Notes by one or more Agents as
principal, agreement as to whether the following will be required:
Officers' Certificate pursuant to Section 7(b) of the Distribution
Agreement.
Legal Opinions pursuant to Section 7(c) of the Distribution Agreement.
Comfort Letter pursuant to Section 7(d) of the Distribution Agreement.
Stand-off Agreement pursuant to Section 4(k) of the Distribution
Agreement.
3
EXHIBIT A TO TERMS AGREEMENT
FORMS OF FINAL TERM SHEET
KIMCO REALTY CORPORATION
SERIES C MEDIUM-TRUST NOTES
DUE NINE MONTHS OR MORE
FROM DATE OF ISSUE
FINAL TERM SHEET
Form of Fixed Rate Pricing Term Sheet
Issuer: Kimco Realty Corporation
Size:
Security Type:
Maturity:
Coupon:
Price to Public:
Yield to maturity:
[Spread to Benchmark Treasury:
[Benchmark Treasury:]
[Benchmark Treasury Spot and Yield:
Proceeds (Before Expenses) to Issuer:
Interest Payment Dates:
Redemption Provisions:
First call date and price:
Make-whole call
Trade Date:
Settlement Date:
Denominations
CUSIP:
Ratings:
Underwriters:
THE ISSUER HAS FILED A REGISTRATION STATEMENT (INCLUDING A PROSPECTUS) WITH THE
SEC FOR THE OFFERING TO WHICH THIS COMMUNICATION RELATES. BEFORE YOU INVEST, YOU
SHOULD READ THE PROSPECTUS IN THAT REGISTRATION STATEMENT AND OTHER DOCUMENTS
THE ISSUER HAS FILED WITH THE SEC FOR MORE COMPLETE INFORMATION ABOUT THE ISSUER
AND THIS OFFERING. YOU MAY GET THESE DOCUMENTS FOR FREE BY VISITING ▇▇▇▇▇ ON THE
SEC WEB SITE AT ▇▇▇.▇▇▇.▇▇▇. ALTERNATIVELY, THE ISSUER, ANY UNDERWRITER OR ANY
DEALER PARTICIPATING IN THE OFFERING WILL ARRANGE TO SEND YOU THE PROSPECTUS IF
YOU REQUEST IT BY CALLING COLLECT o.
ANY DISCLAIMER OR OTHER NOTICE THAT MAY APPEAR BELOW IS NOT APPLICABLE TO THIS
COMMUNICATION AND SHOULD BE DISREGARDED. SUCH DISCLAIMER OR NOTICE WAS
AUTOMATICALLY GENERATED AS A RESULT OF THIS COMMUNICATION BEING SENT BY
BLOOMBERG OR ANOTHER EMAIL SYSTEM.
4
Form of Floating Rate Pricing Term Sheet
Issuer: Kimco Realty Corporation
Size:
Maturity:
Coupon:
Price to Public:
Proceeds (Before Expenses) to Issuer:
Interest Payment and Reset Dates:
Day Count Convention
Redemption Provisions:
Trade Date:
Settlement Date:
Denominations
CUSIP:
Ratings:
Underwriters:
THE ISSUER HAS FILED A REGISTRATION STATEMENT (INCLUDING A PROSPECTUS) WITH THE
SEC FOR THE OFFERING TO WHICH THIS COMMUNICATION RELATES. BEFORE YOU INVEST, YOU
SHOULD READ THE PROSPECTUS IN THAT REGISTRATION STATEMENT AND OTHER DOCUMENTS
THE ISSUER HAS FILED WITH THE SEC FOR MORE COMPLETE INFORMATION ABOUT THE ISSUER
AND THIS OFFERING. YOU MAY GET THESE DOCUMENTS FOR FREE BY VISITING ▇▇▇▇▇ ON THE
SEC WEB SITE AT ▇▇▇.▇▇▇.▇▇▇. ALTERNATIVELY, THE ISSUER, ANY UNDERWRITER OR ANY
DEALER PARTICIPATING IN THE OFFERING WILL ARRANGE TO SEND YOU THE PROSPECTUS IF
YOU REQUEST IT BY CALLING COLLECT o.
ANY DISCLAIMER OR OTHER NOTICE THAT MAY APPEAR BELOW IS NOT APPLICABLE TO THIS
COMMUNICATION AND SHOULD BE DISREGARDED. SUCH DISCLAIMER OR NOTICE WAS
AUTOMATICALLY GENERATED AS A RESULT OF THIS COMMUNICATION BEING SENT BY
BLOOMBERG OR ANOTHER EMAIL SYSTEM.
5
EXHIBIT B TO TERMS AGREEMENT
[SPECIFY EACH ISSUER FREE WRITING PROSPECTUS]
SCHEDULE A
As compensation for the services of the Agents hereunder, the Company
shall pay the applicable Agent, on a discount basis, a commission for the sale
of each Note equal to the principal amount of such Note multiplied by the
appropriate percentage set forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
From 9 months to less than 1 year........................... .125%
From 1 year to less than 18 months.......................... .150
From 18 months to less than 2 years......................... .200
From 2 years to less than 3 years........................... .250
From 3 years to less than 4 years........................... .350
From 4 years to less than 5 years........................... .450
From 5 years to less than 6 years........................... .500
From 6 years to less than 7 years........................... .550
From 7 years to less than 10 years.......................... .600
From 10 years to less than 15 years......................... .625
From 15 years to less than 20 years......................... .700
From 20 years to 30 years................................... .750
Greater than 30 years....................................... *
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* As agreed to by the Company and the applicable Agent at the time of sale.