exv1w1
Exhibit 1.1
Execution Copy
ESSEX PROPERTY TRUST, INC
2,600,000 Shares
7.125% Series H Cumulative Redeemable Preferred Stock
($0.0001 par value per Share)
Underwriting Agreement
Underwriting Agreement
April 8, 2011
WELLS FARGO SECURITIES, LLC
RAYMOND JAMES & ASSOCIATES, INC.
as Representatives of the several Underwriters
Wells Fargo Securities, LLC
301 S. College Street
Charlotte, North Carolina 28288
Raymond James & Associates, Inc.
880 Carillon Parkway
St. Petersburg, Florida 33716
Ladies and Gentlemen:
Essex Property Trust, Inc., a Maryland corporation (the “Company”), proposes to issue and sell
to the underwriters named in Schedule A annexed hereto (the “Underwriters”), for whom Wells Fargo
Securities, LLC and Raymond James & Associates, Inc. are acting as representatives (in such
capacity, the “Representatives”), an aggregate of 2,600,000 shares (the “Firm Shares”) of 7.125%
Series H Cumulative Redeemable Preferred Stock (liquidation preference $25.00 per share), $0.0001
par value per share (the “Series H Stock”), of the Company. In addition, solely for the purpose of
covering over-allotments, the Company proposes to grant to the Underwriters the option to purchase
from the Company up to an additional 390,000 shares of Series H Stock (the “Additional Shares”).
The Firm Shares and the Additional Shares are hereinafter collectively sometimes referred to as the
“Shares.” The Shares are described in the Prospectus which is referred to below.
The Company has prepared and filed, in accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations thereunder (collectively, the “Act”), with the
Securities and Exchange Commission (the “Commission”) a registration statement on Form S-3 (File
No. 333-165693) under the Act (the “Registration Statement”), including a prospectus, which
registration statement incorporates by reference documents which the Company has filed, or will
file, in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder (collectively, the “Exchange Act”). Such registration statement
has become effective under the Act.
Except where the context otherwise requires, “Registration Statement,” as used herein, means
the registration statement, as amended at the time of such registration statement’s effectiveness
for purposes of Section 11 of the Act, as such section applies to the respective Underwriters (the
“Effective Time”), including (i) all documents filed as a part thereof or incorporated or deemed to
be incorporated by reference therein, (ii) any information contained or incorporated by reference
in a prospectus filed with the Commission pursuant to Rule 424(b) under the Act, to the extent such
information is deemed, pursuant to Rule 430B or Rule 430C
under the Act, to be part of the registration statement at the Effective Time, and (iii) any
registration statement filed to register the offer and sale of Shares pursuant to Rule 462(b) under
the Act.
The Company has furnished to you, for use by the Underwriters and by dealers in connection
with the offering of the Shares, copies of one or more preliminary prospectus supplements, and the
documents incorporated by reference therein, relating to the Shares. Except where the context
otherwise requires, “Pre-Pricing Prospectus,” as used herein, means each such preliminary
prospectus supplement, in the form so furnished, including any basic prospectus (whether or not in
preliminary form) furnished to you by the Company and attached to or used with such preliminary
prospectus supplement. Except where the context otherwise requires, “Basic Prospectus,” as used
herein, means any such basic prospectus on file with the Commission when marketing efforts began
and any basic prospectus furnished to you by the Company and attached to or used with the
Prospectus Supplement (as defined below).
Except where the context otherwise requires, “Prospectus Supplement,” as used herein, means
the final prospectus supplement, relating to the Shares, filed by the Company with the Commission
pursuant to Rule 424(b) under the Act on or before the second business day after the date hereof
(or such earlier time as may be required under the Act), in the form furnished by the Company to
you for use by the Underwriters and by dealers in connection with the offering of the Shares.
Except where the context otherwise requires, “Prospectus,” as used herein, means the
Prospectus Supplement together with the Basic Prospectus attached to or used with the Prospectus
Supplement.
“Permitted Free Writing Prospectuses,” as used herein, means the documents listed on Schedule
B attached hereto and each “road show” (as defined in Rule 433 under the Act), if any, related to
the offering of the Shares contemplated hereby that is a “written communication” (as defined in
Rule 405 under the Act). The Underwriters have not offered or sold and will not offer or sell,
without the Company’s consent, any Shares by means of any “free writing prospectus” (as defined in
Rule 405 under the Act) that is required to be filed by the Underwriters with the Commission
pursuant to Rule 433 under the Act, other than a Permitted Free Writing Prospectus.
“Disclosure Package,” as used herein, means any Pre-Pricing Prospectus or Basic Prospectus, in
either case together with any combination of one or more of the Permitted Free Writing
Prospectuses, if any.
Any reference herein to the registration statement, the Registration Statement, any Basic
Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or any Permitted
Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated
by reference, or deemed to be incorporated by reference, therein (the “Incorporated Documents”),
including, unless the context otherwise requires, the documents, if any, filed as exhibits to such
Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement”
with respect to the Registration Statement, any Basic Prospectus, any Pre-Pricing Prospectus, the
Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus shall be deemed to
refer to and include the filing of any
-2-
document under the Exchange Act on or after the initial effective date of the Registration
Statement, or the date of such Basic Prospectus, such Pre-Pricing Prospectus, the Prospectus
Supplement, the Prospectus or such Permitted Free Writing Prospectus, as the case may be, and
deemed to be incorporated therein by reference.
As used in this Agreement, “business day” shall mean a day on which the New York Stock
Exchange (the “NYSE”) is open for trading. The terms “herein,” “hereof,” “hereto,” “hereinafter”
and similar terms, as used in this Agreement, shall in each case refer to this Agreement as a whole
and not to any particular section, paragraph, sentence or other subdivision of this Agreement. The
term “or,” as used herein, is not exclusive.
The Company and the Underwriters agree as follows:
1. Sale and Purchase. Upon the basis of the representations and warranties and
subject to the terms and conditions herein set forth, the Company agrees to issue and sell to the
respective Underwriters and each of the Underwriters, severally and not jointly, agrees to purchase
from the Company the number of Firm Shares set forth opposite the name of such Underwriter in
Schedule A attached hereto, subject to adjustment in accordance with Section 8 hereof, in each case
at a purchase price of $24.2125 per Share. The Company is advised by you that the Underwriters
intend (i) to make a public offering of their respective portions of the Firm Shares as soon after
the effectiveness of this Agreement as in your judgment is advisable and (ii) initially to offer
the Firm Shares upon the terms set forth in the Prospectus. You may from time to time increase or
decrease the public offering price after the initial public offering to such extent as you may
determine.
In addition, the Company hereby grants to the several Underwriters the option (the
“Over-Allotment Option”) to purchase, and upon the basis of the representations and warranties and
subject to the terms and conditions herein set forth, the Underwriters shall have the right to
purchase, severally and not jointly, from the Company, ratably in accordance with the number of
Firm Shares to be purchased by each of them, all or a portion of the Additional Shares as may be
necessary to cover over-allotments made in connection with the offering of the Firm Shares, at the
same purchase price per share to be paid by the Underwriters to the Company for the Firm Shares.
The Over-Allotment Option may be exercised by the Representatives on behalf of the several
Underwriters at any time and from time to time on or before the thirtieth day following the date of
the Prospectus Supplement, by written notice to the Company. Such notice shall set forth the
aggregate number of Additional Shares as to which the Over-Allotment Option is being exercised and
the date and time when the Additional Shares are to be delivered (any such date and time being
herein referred to as an “additional time of purchase”); provided, however, that no
additional time of purchase shall be earlier than the “time of purchase” (as defined below) nor
earlier than the second business day after the date on which the Over-Allotment Option shall have
been exercised nor later than the tenth business day after the date on which the Over-Allotment
Option shall have been exercised. The number of Additional Shares to be sold to each Underwriter
shall be the number which bears the same proportion to the aggregate number of Additional Shares
being purchased as the number of Firm Shares set forth opposite the name of such Underwriter on
Schedule A hereto bears to the total number of Firm Shares (subject, in each case, to such
adjustment as the Representatives may determine to eliminate fractional shares), subject to
adjustment in accordance with Section 8 hereof.
-3-
2. Payment and Delivery. Payment of the purchase price for the Firm Shares shall be
made to the Company by Federal Funds wire transfer against delivery of the certificates for the
Firm Shares to you through the facilities of The Depository Trust Company (“DTC”) for the
respective accounts of the Underwriters. Such payment and delivery shall be made at 10:00 A.M.,
New York City time, on April 13, 2011 (unless another time shall be agreed to by you and the
Company or unless postponed in accordance with the provisions of Section 8 hereof). The time at
which such payment and delivery are to be made is hereinafter sometimes called the “time of
purchase.” Electronic transfer of the Firm Shares shall be made to you at the time of purchase in
such names and in such denominations as you shall specify.
Payment of the purchase price for the Additional Shares shall be made at the additional time
of purchase in the same manner and at the same office as the payment for the Firm Shares.
Electronic transfer of the Additional Shares shall be made to you at the additional time of
purchase in such names and in such denominations as you shall specify.
Deliveries of the documents described in Section 6 hereof with respect to the purchase of the
Shares shall be made at the offices of Baker & McKenzie LLP, at Two Embarcadero Center, 11th Floor,
San Francisco, California, at 9:00 A.M., New York City time, on the date of the closing of the
purchase of the Firm Shares or the Additional Shares, as the case may be.
3. Representations and Warranties of the Company. The Company represents and warrants
to and agrees with each of the Underwriters that:
(a) the Registration Statement became automatically effective upon filing with the
Commission under the Act and, with respect to any registration statement to be filed to
register the offer and sale of Shares pursuant to Rule 462(b) under the Act, will be filed
with the Commission and become effective under the Act no later than 10:00 P.M., New York
City time, on the date of determination of the public offering price for the Shares; no stop
order suspending the use of the Basic Prospectus, any Pre-Pricing Prospectus, the Prospectus
Supplement, the Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of
the Registration Statement, is in effect, and no proceedings for such purpose have been
instituted or are pending or, to the best knowledge of the Company, are contemplated or
threatened by the Commission;
(b) the Registration Statement complied when it became effective, complies as of the
date hereof and, as amended or supplemented, at the time of purchase, each additional time
of purchase, if any, and at all times during which a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172 under the Act or any
similar rule) in connection with any sale of Shares, will comply, in all material respects,
with the requirements of the Act; the conditions to the use of Form S-3 in connection with
the offering and sale of the Shares as contemplated hereby have been satisfied; the
Registration Statement constitutes an “automatic shelf registration statement” (as defined
in Rule 405 under the Act); the Company has not received, from the Commission, a notice,
pursuant to Rule 401(g)(2), of objection to the use of the automatic shelf registration
statement form; as of the determination date applicable to the Registration Statement (and
any amendment thereof) and the offering contemplated hereby, the Company is a “well-known
seasoned issuer” as defined in Rule 405 under the
-4-
Act; the Registration Statement meets, and the offering and sale of the Shares as
contemplated hereby complies with, the requirements of Rule 415 under the Act (including,
without limitation, Rule 415(a)(5) under the Act); the Registration Statement did not, as of
the Effective Time, 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 Pre-Pricing Prospectus complied, at the time it was filed with the
Commission, and complies as of the date hereof, in all material respects with the
requirements of the Act; at no time during the period that begins on the earlier of the date
of such Pre-Pricing Prospectus and the date such Pre-Pricing Prospectus was filed with the
Commission and ends at the time of purchase did or will any Pre-Pricing Prospectus, as then
amended or supplemented, include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and at no time during such period
did or will any Pre-Pricing Prospectus, as then amended or supplemented, together with any
combination of one or more of the then issued Permitted Free Writing Prospectuses, if any,
include an untrue statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they
were made, not misleading; each Basic Prospectus complied or will comply, as of its date and
the date it was or will be filed with the Commission, complies as of the date hereof (if
filed with the Commission on or prior to the date hereof) and, at the time of purchase, each
additional time of purchase, if any, and at all times during which a prospectus is required
by the Act to be delivered (whether physically or through compliance with Rule 172 under the
Act or any similar rule) in connection with any sale of Shares, will comply, in all material
respects, with the requirements of the Act; each of the Prospectus Supplement and the
Prospectus will comply, as of the date that it is filed with the Commission, the date of the
Prospectus Supplement, the time of purchase, each additional time of purchase, if any, and
at all times during which a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of Shares, in all material respects, with the requirements of the
Act (in the case of the Prospectus, including, without limitation, Section 10(a) of the
Act); at no time during the period that begins on the earlier of the date of the Prospectus
Supplement and the date the Prospectus Supplement is filed with the Commission and ends at
the later of the time of purchase, the latest additional time of purchase, if any, and the
end of the period during which a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of Shares did or will any Prospectus Supplement or the Prospectus,
as then amended or supplemented, include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; at no time during the period that
begins on the date of such Permitted Free Writing Prospectus and ends at the time of
purchase did or will any Permitted Free Writing Prospectus include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representation or warranty in this Section 3(b)
with respect to any statement contained in the Registration
-5-
Statement, any Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing
Prospectus in reliance upon and in conformity with information concerning an Underwriter and
furnished in writing by or on behalf of such Underwriter through you to the Company
expressly for use in the Registration Statement, such Pre-Pricing Prospectus, the Prospectus
or such Permitted Free Writing Prospectus; each Incorporated Document, at the time such
document was filed with the Commission or at the time such document became effective, as
applicable, complied, in all material respects, with the requirements of the Exchange Act
and did not include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(c) prior to the execution of this Agreement, the Company has not, directly or
indirectly, offered or sold any Shares by means of any “prospectus” (within the meaning of
the Act) or used any “prospectus” (within the meaning of the Act) in connection with the
offer or sale of the Shares, in each case other than the Pre-Pricing Prospectuses and the
Permitted Free Writing Prospectuses, if any; the Company has not, directly or indirectly,
prepared, used or referred to any Permitted Free Writing Prospectus except in compliance
with Rule 163 or with Rules 164 and 433 under the Act; assuming that such Permitted Free
Writing Prospectus is so sent or given after the Registration Statement was filed with the
Commission (and after such Permitted Free Writing Prospectus was, if required pursuant to
Rule 433(d) under the Act, filed with the Commission), the sending or giving, by any
Underwriter, of any Permitted Free Writing Prospectus will satisfy the provisions of Rule
164 and Rule 433 (without reliance on subsections (b), (c) and (d) of Rule 164); the
conditions set forth in one or more of subclauses (i) through (iv), inclusive, of Rule
433(b)(1) under the Act are satisfied, and the registration statement relating to the
offering of the Shares contemplated hereby, as initially filed with the Commission, includes
a prospectus that, other than by reason of Rule 433 or Rule 431 under the Act, satisfies the
requirements of Section 10 of the Act; neither the Company nor the Underwriters are
disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act, from using, in
connection with the offer and sale of the Shares, “free writing prospectuses” (as defined in
Rule 405 under the Act) pursuant to Rules 164 and 433 under the Act; the Company is not an
“ineligible issuer” (as defined in Rule 405 under the Act) as of the eligibility
determination date for purposes of Rules 164 and 433 under the Act with respect to the
offering of the Shares contemplated by the Registration Statement; the parties hereto agree
and understand that the content of any and all “road shows” (as defined in Rule 433 under
the Act) related to the offering of the Shares contemplated hereby is solely the property of
the Company;
(d) the Company (i) has a class of securities registered pursuant to section 12(b) of
the Act and is required to file reports pursuant to section 15(d) of the Exchange Act; (ii)
has been subject to the requirements of section 12 or 15(d) of the Exchange Act and has
filed all the material required to be filed pursuant to sections 13, 14, or 15(d) for a
period of at least thirty-six calendar months immediately preceding the filing of the
registration statement; (iii) has filed in a timely manner all reports required to be filed
pursuant to sections 13, 14, or 15(d) of the Exchange Act during the twelve calendar months
and any portion of a month immediately preceding the filing of the registration statement
and, if the registrant has used (during the twelve calendar months and any
-6-
portion of a month immediately preceding the filing of the registration statement) Rule
12b-25(b) under the Act with respect to a report or a portion of a report, that report or
portion thereof has actually been filed within the time period prescribed by said rule; (iv)
neither the Company nor any of its consolidated subsidiaries have, since the end of the last
fiscal year for which certified financial statements of the registrant and its consolidated
subsidiaries were included in a report filed pursuant to section 13(a) or 15(d) of the
Exchange act: (x) failed to pay any dividend or sinking fund installment on preferred
stock; or (y) defaulted (A) on any installment or installments on indebtedness for borrowed
money, or (B) on any rental on one or more long term leases, which defaults in the aggregate
are material to the financial position of the registrant and its consolidated and
unconsolidated subsidiaries, taken as a whole; and (v) the aggregate market value (computed
by use of the price at which the Company’s shares of common stock, par value $0.0001 per
share (the “Common Stock”), was last sold, or the average of the bid and asked prices of
such stock, as of a date within 60 days prior to the date of filing of the registration
statement) of the voting stock held by non-affiliates of the Company is $150 million or
more;
(e) the Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Maryland, has its principal business operations
in the United States, is in good standing with the State Department of Assessments and
Taxation of Maryland and has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration Statement, the
Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any,
to enter into and perform its obligations under this Agreement. Essex Portfolio, L.P., a
California limited partnership (the “Operating Partnership”), is the Company’s only
significant subsidiary (as defined in Rule 1-02(w) of Regulation S-X of the Exchange Act)
(the “Significant Subsidiary”). The Significant Subsidiary has been duly organized and is
validly existing as a partnership in good standing under the laws of the jurisdiction of its
organization and has the requisite power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration Statement, the
Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing Prospectus, if any.
The Company is duly qualified as a foreign corporation to transact business and is in good
standing in the State of California. Each of the Company and the Significant Subsidiary is
duly qualified as a foreign corporation or foreign partnership in each other jurisdiction in
which such qualification is required, whether by reason of the ownership or leasing of
property of the conduct of business, except for such jurisdictions (other than the State of
California) where the failure to so qualify or to be in good standing would not,
individually or in the aggregate, result in a Material Adverse Change. Except as described
in the Registration Statement, the Pre-Pricing Prospectus and the Prospectus, all of the
issued and outstanding partnership interests in the Significant Subsidiary have been duly
authorized and validly issued and are fully paid and nonassessable. The partnership
interests in the Significant Subsidiary that are owned by the Company are free and clear of
any security interest, mortgage, pledge, lien, encumbrance or claim. The Company does not
own or control, directly or indirectly, any corporation, association or other entity other
than the subsidiaries listed in Exhibit 21.1 to the Company’s Annual Report on Form 10-K for
the fiscal year ended December 31, 2010 and other than (i) those subsidiaries not required
to
-7-
be listed on Exhibit 21.1 by Item 601 of Regulation S-K under the Exchange Act and (ii)
those subsidiaries formed since December 31, 2010.
(f) the capital stock of the Company, including the Shares and the Common Stock,
conforms in all material respects to the description thereof contained in the Registration
Statement, the Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing
Prospectus; and the certificates, if any, for the Shares and the Common Stock are in due and
proper form; all of the issued and outstanding shares of Common Stock and preferred stock of
the Company, par value $0.0001 per share (the “Preferred Stock”) have been duly authorized
and validly issued, are fully paid and non-assessable and have been issued in compliance
with federal and state securities laws. None of the outstanding shares of Common Stock and
Preferred Stock were issued in violation of any preemptive rights, rights of first refusal
or other similar rights to subscribe for or purchase securities of the Company; there are no
authorized or outstanding options, warrants, preemptive rights, rights of first refusal or
other rights to purchase, or equity or debt securities convertible into or exchangeable or
exercisable for, any capital stock of the Company or any of its subsidiaries other than
those accurately described in all material respects in the Registration Statement, the
Pre-Pricing Prospectus and the Prospectus. The description of the Company’s stock option,
stock bonus and other stock plans or arrangements, and the options or other rights granted
thereunder, set forth in the Registration Statement, the Pre-Pricing Prospectus and the
Prospectus accurately and fairly presents in all material respects the information required
to be shown with respect to such plans, arrangements, options and rights. The shares of
Common Stock initially issuable upon conversion of the Shares have been duly authorized and,
when issued upon conversion of the Shares in accordance with the terms of the articles
supplementary to the Company’s charter establishing the terms of the Series H Stock (the
“Articles Supplementary”), will be validly issued, fully paid and nonassessable; the Board
of Directors of the Company has duly and validly reserved such shares of Common Stock for
issuance upon conversion of the Shares; the shares of Common Stock issuable upon conversion
of the Shares conform to all statements relating thereto contained in the Registration
Statement, the Pre-Pricing Prospectus and the Prospectus; the form of certificate used to
evidence the shares of Common Stock issuable upon conversion of the Shares will be in the
applicable form and such form complies with all applicable statutory requirements and
requirements of the Company’s charter and bylaws;
(g) this Agreement has been duly authorized, executed and delivered by, and is a valid
and binding agreement of, the Company, enforceable in accordance with its terms, except as
rights to indemnification hereunder may be limited by applicable law and except as the
enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting the rights and remedies of creditors or by
general equitable principles;
(h) the Articles Supplementary to the Company’s charter establishing the terms of the
Series H Stock and authorizing the proper number of Shares will be, by the time of purchase,
duly authorized, executed and filed by the Company with the Maryland State Department of
Assessments and Taxation and effective under the Maryland General Corporation Law;
-8-
(i) the Shares have been duly and validly authorized and, when issued and delivered
against payment therefor as provided herein, will be duly and validly issued, fully paid and
non-assessable and free of statutory and contractual preemptive rights, resale rights,
rights of first refusal and similar rights; the Shares, when issued and delivered against
payment therefor as provided herein, will be free of any restriction upon the voting or
transfer thereof, except for the limitations described in the Registration Statement, the
Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, pursuant
to the Company’s charter or bylaws;
(j) neither the Company nor any of its subsidiaries is in violation of its charter or
by-laws or is in default (or, with the giving of notice or lapse of time, would be in
default) (“Default”) under any indenture, mortgage, loan or credit agreement, note,
contract, franchise, 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 (each, an “Existing
Instrument”), except for such Defaults as would not, individually or in the aggregate,
result in a Material Adverse Effect. The Company’s execution, delivery and performance of
this Agreement, the issuance and sale of the Shares and the consummation of the transactions
contemplated hereby and thereby and by the Registration Statement, the Pre-Pricing
Prospectus, the Prospectus or any Permitted Free Writing Prospectus, if any, (i) have been
duly authorized by all necessary corporate action and will not result in any violation of
the provisions of the charter or by-laws of the Company or any of its subsidiaries, (ii)
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, or require the consent of any other party
to, any Existing Instrument, except for such conflicts, breaches, Defaults, liens, charges
or encumbrances as would not, individually or in the aggregate, result in a Material Adverse
Effect and (iii) will not result in any violation of any law, administrative regulation or
administrative or court decree applicable to the Company or any subsidiary. No consent,
approval, authorization or other order of, or registration or filing with, any court or
other governmental or regulatory authority or agency, is required for the Company’s
execution, delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby and thereby and by the Registration Statement, the
Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus, if any,
except such as have been obtained or made by the Company and are in full force and effect
under the Act, and applicable state securities or blue sky laws and from the Financial
Industry Regulatory Authority (“FINRA”);
(k) there are no persons with registration or other similar rights to have any equity
or debt securities registered for sale under the Registration Statement or included in the
offering contemplated by this Agreement, except for such rights as have been duly waived;
(l) except as otherwise disclosed in the Registration Statement, the Pre-Pricing
Prospectus, the Prospectus or any Permitted Free Writing Prospectus, if any, subsequent to
the respective dates as of which information is given in the Prospectus: (i) there has been
no material adverse change, or any development that could reasonably be
-9-
expected to result in a material adverse change, or any development that could
reasonably be expect to result in a material adverse change, in the condition, financial or
otherwise, or in the earnings, business, operations or prospects, whether or not arising
from transactions in the ordinary course of business, of the Company and its subsidiaries,
considered as one entity (any such change is called a “Material Adverse Change”); (ii) the
Company and its subsidiaries, considered as one entity, have not incurred any material
liability or obligation, indirect, direct or contingent, not in the ordinary course of
business nor entered into any material transaction or agreement not in the ordinary course
of business; and (iii) there has been no dividend or distribution of any kind declared, paid
or made by the Company (except for regular quarterly dividends publicly announced by the
Company), or (except for dividends paid to the Company or other subsidiaries) any of its
subsidiaries on any class of capital stock or repurchase or redemption by the Company or any
of its subsidiaries of any class of capital stock;
(m) KPMG LLP, who have expressed their opinion with respect to the financial statements
(which term as used in this Agreement includes the related notes thereto) and supporting
schedules filed with the Commission or incorporated by reference as a part of the
Registration Statement and included in the Prospectus, is an independent registered public
accounting firm as required by the Securities Act and the Exchange Act, and by the rules of
the Public Company Accounting Oversight Board;
(n) the financial statements included or incorporated by reference in the Registration
Statement, the Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing
Prospectuses, if any, together with the related notes and schedules, present fairly the
consolidated financial position of the Company and its subsidiaries as of and at the dates
indicated and the results of their operations and cash flows for the periods specified. The
supporting schedules included in or incorporated by reference in the Registration Statement,
the Pre-Pricing Prospectus and the Prospectus present fairly the information required to be
stated therein. Such financial statements and supporting schedules have been prepared in
conformity with generally accepted accounting principles as applied in the United States
applied on a consistent basis throughout the periods involved, except as may be expressly
stated in the related notes thereto. No other financial statements or supporting schedules
are required to be included or incorporated by reference in the Registration Statement, the
Pre-Pricing Prospectus and the Prospectus. The financial data set forth or incorporated by
reference in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus or any
Permitted Free Writing Prospectus, if any, including under the caption “Selected Financial
Data,” fairly present the information set forth therein on a basis consistent with that of
the audited financial statements contained, incorporated or deemed to be incorporated in the
Registration Statement, the Pre-Pricing Prospectus and the Prospectus. The ratios of
earnings to fixed charges set forth in Exhibit 12.1 to the Company’s Annual Report on Form
10-K for the fiscal year ended December 31, 2010 have been calculated in compliance with
Item 503(d) of Regulation S-K under the Act;
(o) the Company and its subsidiaries do not have any material liabilities or
obligations, direct or contingent (including any off-balance sheet obligations), not
disclosed in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus or any
-10-
Permitted Free Writing Prospectus, if any; except as disclosed in the Registration
Statement, the Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing
Prospectus, if any, neither the Company nor any of its subsidiaries is, together with its
“related parties,” the “primary beneficiary” of any “variable interest entity” (as such
terms are used in Financial Accounting Standards Board Interpretation No. 46 or successor
provision); and all disclosures contained in the Registration Statement, the Pricing
Prospectus, the Prospectus or any Permitted Free Writing Prospectus, if any, including the
documents incorporated by reference therein, regarding “non-GAAP financial measures” (as
such term is defined by the rules and regulations of the Commission) comply with Regulation
G of the “Exchange Act” and Item 10 of the Regulation S-K under the Act, to the extent
applicable;
(p) there are no legal or governmental actions, suits or proceedings pending or, to the
best of the Company’s knowledge, threatened (i) against or affecting the Company or any of
its subsidiaries, (ii) which has as the subject thereof any officer or director of, or
property owned or leased by, the Company or any of its subsidiaries or (iii) relating to
environmental or discrimination matters, where in any such case (A) there is a reasonable
possibility that such action, suit or proceeding might be determined adversely to the
Company or such subsidiary and (B) any such action, suit or proceeding, if so determined
adversely, would result in a Material Adverse Change or adversely affect the consummation of
the transactions contemplated hereby. No material labor dispute with the employees of the
Company or any of its subsidiaries exists or, to the best of the Company’s knowledge, is
threatened or imminent;
(q) the Company and each subsidiary possess such valid and current certificates,
authorizations or permits issued by the appropriate state, federal or foreign regulatory
agencies or bodies necessary to conduct their respective businesses, other than those the
failure to possess or own would not result in a Material Adverse Effect, and neither the
Company nor any subsidiary has received any notice of proceedings relating to the revocation
or modification of, or non-compliance with, any such certificate, authorization or permit
which, individually or in the aggregate, if the subject of an unfavorable decision, ruling
or finding, could result in a Material Adverse Change;
(r) except as disclosed in the Registration Statement, the Pre-Pricing Prospectus, the
Prospectus or any Permitted Free Writing Prospectuses, the Company and each of its
subsidiaries has good and marketable title to all the properties and assets reflected as
owned in the financial statements referred to in Section 3(m) above (or elsewhere in the
Registration Statement, the Pre-Pricing Prospectus, the Prospectus or any Permitted Free
Writing Prospectus, if any), in each case free and clear of any security interests,
mortgages, liens, encumbrances, equities, claims and other defects, except such as do not
materially and adversely affect the value of such property and do not materially interfere
with the use made or proposed to be made of such property by the Company or such subsidiary.
The real property, improvements, equipment and personal property held under lease by the
Company or any subsidiary are held under valid and enforceable leases, with such exceptions
as are not material and do not materially interfere with the use made or proposed to be made
of such real property, improvements, equipment or personal property by the Company or such
subsidiary;
-11-
(s) the Company and its subsidiaries have filed all necessary federal, state and
foreign income, property and franchise tax returns and have paid all taxes required to be
paid by any of them and, if due and payable, any related or similar assessment, fine or
penalty levied against any of them except as may be being contested in good faith and by
appropriate proceedings. The Company has made adequate charges, accruals and reserves in
the applicable financial statements referred to in Section 3(m) above in respect of all
federal, state and foreign income, property and franchise taxes for all periods as to which
the tax liability of the Company or any of its consolidated subsidiaries has not been
finally determined;
(t) commencing with the Company’s taxable year beginning January 1, 1994, the Company
has been organized and has operated in conformity with the requirements for qualification as
a “real estate investment trust,” and its organization and proposed method of operation will
enable it to meet the requirements for the qualification and taxation as a “real estate
investment trust” under the Internal Revenue Code of 1986, as amended (the “Code”);
(u) the Company has been advised of the rules and requirements under the Investment
Company Act of 1940, as amended (the “Investment Company Act”). The Company is not and,
after receipt of payment for the Shares will not be an “investment company” within the
meaning of Investment Company Act and will conduct its business in a manner so that it will
not become subject to the Investment Company Act;
(v) except as otherwise described in the Registration Statement, the Pre-Pricing
Prospectus, the Prospectus or any Permitted Free Writing Prospectus, if any, each of the
Company and its subsidiaries are insured by insurers of recognized financial responsibility
with policies in such amounts and with such deductibles and covering such risks as are
generally deemed prudent and customary for the business for which it is engaged including,
but not limited to, policies covering real and personal property owned or leased by the
Company and its subsidiaries against theft, damage, destruction, acts of vandalism and
earthquakes. The Company has no reason to believe that it or any subsidiary will not be
able (i) to renew its existing insurance coverage as and when such policies expire or (ii)
to obtain comparable coverage from similar institutions as may be necessary or appropriate
to conduct its business as now conducted and at a cost that would not result in a Material
Adverse Change;
(w) the Company has not taken and will not take, directly or indirectly, any action
designed to or that might be expected to cause or result in stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of the Shares;
(x) all legal or governmental proceedings, affiliate transactions, off-balance sheet
transactions (including, without limitation, transactions related to, and the existence of,
“variable interest entities” within the meaning of Financial Accounting Standards Board
Interpretation No. 46 or successor provision), contracts, licenses, agreements, properties,
leases or documents of a character required to be described in the Registration Statement,
the Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing
-12-
Prospectus, if any, or any Incorporated Document or to be filed as an exhibit to any
Incorporated Document have been so described or filed as required;
(y) neither the Company nor any of its subsidiaries nor, to the best of the Company’s
knowledge, any employee or agent of the Company or any subsidiary, has made any contribution
or other payment to any official of, or candidate for, any federal, state or foreign office
in violation of any law or of the character required to be disclosed in the Registration
Statement, the Pre-Pricing Prospectus or the Prospectus;
(z) neither the Company nor any of its subsidiaries is engaged in any unfair labor
practice; except as disclosed in the Registration Statement, the Pre-Pricing Prospectus, the
Prospectus or any Permitted Free Writing Prospectus, if any, and except for matters which
would not, individually or in the aggregate, have a reasonable possibility of resulting in a
Material Adverse Effect, (i) there is (A) no unfair labor practice complaint pending or, to
either Issuer’s knowledge after due inquiry, threatened against the Company or any of its
subsidiaries before the National Labor Relations Board, and no grievance or arbitration
proceeding arising out of or under collective bargaining agreements is pending or
threatened, (B) no strike, labor dispute, slowdown or stoppage pending or, to the Company’s
knowledge after due inquiry, threatened against the Company or any of its subsidiaries and
(C) no union representation dispute currently existing concerning the employees of the
Company or any of its subsidiaries, and (ii) to the Company’s knowledge after due inquiry,
(A) no union organizing activities are currently taking place concerning the employees of
the Company or any of its subsidiaries and (B) there has been no violation of any federal,
state, local or foreign law relating to discrimination in the hiring, promotion or pay of
employees, any applicable wage or hour laws or any provision of the Employee Retirement
Income Security Act of 1974 (“ERISA”) or the rules and regulations promulgated thereunder
concerning the employees of the Company or any of its subsidiaries;
(aa) neither the Company nor any of its subsidiaries has sustained since the date of
the last audited financial statements incorporated by reference in the Registration
Statement, the Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing
Prospectus, if any, any material loss or interference with its respective business from
fire, explosion, flood or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree;
(bb) neither the Company nor any of its subsidiaries has sent or received any
communication regarding termination of, or intent not to renew, any of the contracts or
agreements referred to or described in the Registration Statement, the Pre-Pricing
Prospectus, the Prospectus, any Permitted Free Writing Prospectus, if any, or any
Incorporated Document, or filed as an exhibit to any Incorporated Document, and no such
termination or non-renewal has been threatened by the Company or any subsidiary or, to the
Company’s knowledge after due inquiry, any other party to any such contract or agreement,
except, in each case, for any such terminations or non-renewals that would not, individually
or in the aggregate, result in a Material Adverse Change;
-13-
(cc) the Company maintains a system of accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in accordance with management’s
general or specific authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted accounting
principles as applied in the United States and to maintain accountability for assets; (iii)
access to assets is permitted only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with respect to any
differences;
(dd) the Company has established and maintains and evaluates “disclosure controls and
procedures” (as such term is defined in Rule 13a-15 and 15d-15 under the Exchange Act) and
“internal control over financial reporting” (as such term is defined in Rule 13a-15 and
15d-15 under the Exchange Act); such disclosure controls and procedures are designed to
ensure that material information relating to the Company, including its consolidated
subsidiaries, is made known to the Company’s Chief Executive Officer and its Chief Financial
Officer by others within those entities, and such disclosure controls and procedures are
effective to perform the functions for which they were established; the Company’s
independent auditors and the Audit Committee of the Board of Directors of the Company have
been advised of: (i) all significant deficiencies in the design or operation of internal
controls which could adversely affect the Company’s ability to record, process, summarize,
and report financial data; and (ii) all fraud, whether or not material, that involves
management or other employees who have a role in the Company’s internal controls; any
material weaknesses in internal controls have been identified for the Company’s auditors;
since the date of the most recent evaluation of such disclosure controls and procedures,
there have been no significant changes in internal controls or in other factors that could
significantly affect internal controls, including any corrective actions with regard to
significant deficiencies and material weaknesses; the principal executive officers (or their
equivalents) and principal financial officers (or their equivalents) of the Company have
made all certifications required by the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley
Act”) and any related rules and regulations promulgated by the Commission, and the
statements contained in any such certification are complete and correct; the Company, its
subsidiaries and the Company’s directors and officers are each in compliance in all material
respects with all applicable effective provisions of the Sarbanes-Oxley Act and the rules
and regulations of the Commission and the NYSE promulgated thereunder;
(ee) the Company has provided you true, correct and complete copies of all
documentation pertaining to any extension of credit in the form of a personal loan made,
directly or indirectly, by the Company or any of its subsidiaries to any director or
executive officer of the Company, or to any family member or affiliate of any director or
executive officer of the Company; and on or after July 30, 2002, the Company has not,
directly or indirectly, including through any of its subsidiaries: (i) extended credit,
arranged to extend credit, or renewed any extension of credit, in the form of a personal
loan, to or for any director or executive officer of the Company, or to or for any family
member or affiliate of any director or executive officer of the Company; or (ii) made any
material modification, including any renewal thereof, to any term of any personal loan to
-14-
any director or executive officer of the Company, or any family member or affiliate of
any director or executive officer, which loan was outstanding on July 30, 2002;
(ff) all statistical or market-related data included in the Registration Statement, the
Pre-Pricing Prospectus, the Prospectus, any Permitted Free Writing Prospectus, if any, or
any Incorporated Document are based on or derived from sources that the Company believes to
be reliable and accurate, and the Company has obtained the written consent to the use of
such data from such sources to the extent required;
(gg) except as otherwise disclosed in the Registration Statement, the Pre-Pricing
Prospectus, the Prospectus or any Permitted Free Writing Prospectus, if any, 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 Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing
Prospectus, if any, are owned with good and marketable title by the Company, its
subsidiaries and/or a joint venture or partnership in which any such party is a participant
(a “Related Entity”); (ii) all of the leases under which any of the Company, its
subsidiaries or, to the knowledge of the Company, Related Entities holds or uses real
properties or assets as a lessee are in full force and effect, and neither the Company, nor
any of its subsidiaries or, to the knowledge of the Company, Related Entities is in material
default in respect of any of the terms or provisions of any of such leases and no claim has
been asserted by anyone adverse to any such party’s rights as lessee under any of such
leases, or affecting or questioning any such party’s right to the continued possession or
use of the leased property or assets under any such leases; (iii) all liens, charges,
encumbrances, claims or restrictions on or affecting the properties and assets of any of the
Company, its subsidiaries or Related Entities which are required to be disclosed in the
Registration Statement, the Pre-Pricing Prospectus 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, its subsidiaries or, to the
knowledge of the Company, Related Entities leases its properties and neither the Company,
not 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 its subsidiaries or, to the knowledge
of the Company, 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;
(hh) title insurance in favor of the mortgagee or the Company, its subsidiaries and/or
their Related Entities is maintained with respect to each property owned by any
-15-
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;
(ii) except as described in the Registration Statement, the Pre-Pricing Prospectus and
the Prospectus, the mortgages and deeds of trust encumbering the properties and assets
described in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus or any
Permitted Free Writing Prospectus, if any, are not convertible nor does the Company, or its
subsidiaries hold a participating interest therein;
(jj) 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 Pre-Pricing Prospectus, the Prospectus or any Permitted Free
Writing Prospectus, if any, 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 bylaws of such party or
any material contract, lease or other instrument to which such party is a party or by which
its properties may be bound or any law, administrative regulation or administrative or court
order or decree, except for such breaches or defaults that would not result in a Material
Adverse Change;
(kk) except as otherwise described in the Registration Statement, the Pre-Pricing
Prospectus, the Prospectus or any Permitted Free Writing Prospectus, if any, 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 any applicable foreign, 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, except for failures that would not result in a Material Adverse Change.
-16-
(ll) except as otherwise described in the Registration Statement, the Pre-Pricing
Prospectus, the Prospectus or any Permitted Free Writing Prospectus, if any, and except as
would not, individually or in the aggregate, result in a Material Adverse Change (i) neither
the Company nor any of its subsidiaries is in violation of any federal, state, local or
foreign law or regulation relating to pollution or protection of human health or the
environment (including, without limitation, ambient air, surface water, groundwater, land
surface or subsurface strata) or wildlife, including without limitation, laws and
regulations relating to emissions, discharges, releases or threatened releases of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum and
petroleum products (collectively, “Materials of Environmental Concern”), or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Materials of Environment Concern (collectively, “Environmental
Laws”), which violation includes, but is not limited to, noncompliance with any permits or
other governmental authorizations required for the operation of the business of the Company
or its subsidiaries under applicable Environmental Laws, or noncompliance with the terms and
conditions thereof, nor has the Company or any of its subsidiaries received any written
communication, whether from a governmental authority, citizens group, employee or otherwise,
that alleges that the Company or any of its subsidiaries is in violation of any
Environmental Law; (ii) there is no claim, action or cause of action filed with a court or
governmental authority, no investigation with respect to which the Company has received
written notice, and no written notice by any person or entity alleging potential liability
for investigatory costs, cleanup costs, governmental responses costs, natural resources
damages, property damages, personal injuries, attorneys’ fees or penalties arising out of,
based on or resulting from the presence, or release into the environment, of any Material of
Environmental Concern at any location owned, leased or operated by the Company or any of its
subsidiaries, now or in the past (collectively, “Environmental Claims”), pending or, to the
best of the Company’s knowledge, threatened against the Company or any of its subsidiaries
or any person or entity whose liability for any Environmental Claim the Company or any of
its subsidiaries has retained or assumed either contractually or by operation of law; and
(iii) to the best of the Company’s knowledge, there are no past or present actions,
activities, circumstances, conditions, events or incidents, including, without limitation,
the release, emission, discharge, presence or disposal of any Material of Environmental
Concern, that reasonably could result in a violation of any Environmental Law or form the
basis of a potential Environmental Claim against the Company or any of its subsidiaries or
against any person or entity whose liability for any Environmental Claim the Company or any
of its subsidiaries has retained or assumed either contractually or by operation of law;
(mm) the description set forth under the caption “The Company’s Portfolio may have
unknown environmental liabilities” in Item IA of the Company’s Annual Report on Form 10-K
for the year ended December 31, 2010 accurately describes the Company’s analysis of the
compliance of its properties with Environmental Laws. On the basis of such analysis and the
amount of its established reserves, the Company has reasonably concluded that the costs and
liabilities associated with the Company’s properties’ compliance with Environmental Laws
would not reasonably be likely, individually or in the aggregate, to result in a Material
Adverse Change;
-17-
(nn) except as set forth in the Registration Statement, the Pre-Pricing Prospectus, the
Prospectus or any Permitted Free Writing Prospectus, if any, there is no broker, finder or
other party that is entitled to receive from the Company any brokerage or finder’s fee or
other fee or commission as a result of any transactions contemplated by this Agreement;
(oo) the Company has not been advised, and has no reason to believe, that it and each
of its subsidiaries are not conducting business in compliance with all applicable laws,
rules and regulations of the jurisdictions in which it is conducting business, except where
failure to be so in compliance would not result in a Material Adverse Change;
(pp) no subsidiary of the Company is currently prohibited, directly or indirectly, from
paying any dividends to the Company, from making any other distribution on such subsidiary’s
capital stock, from repaying to the Company any loans or advances to such subsidiary from
the Company or from transferring any of such subsidiary’s property or assets to the Company
or any other subsidiary of the Company, except as described in the Registration Statement,
the Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus, if any;
and
(qq) the Company is in material compliance with the rules of the NYSE, including,
without limitation, the requirements for continued listing of the Common Stock on the NYSE,
and there are no actions, suits or proceedings pending, threatened or, to the Company’s
knowledge, contemplated, and the Company has not received any notice from the NYSE,
regarding the revocation of such listing or otherwise regarding the delisting of shares of
Common Stock from the NYSE.
In addition, any certificate signed by any officer of the Company or any of the subsidiaries
and delivered to the Underwriters or counsel for the Underwriters in connection with the offering
of the Shares shall be deemed to be a representation and warranty by the Company, as to matters
covered thereby, to each Underwriter.
4. Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to cooperate in
qualifying the Shares for offering and sale under the securities or blue sky laws of such
states or other jurisdictions as you may designate and to maintain such qualifications in
effect so long as you may request for the distribution of the Shares; provided, however,
that the Company shall not be required to qualify as a foreign corporation or to consent to
the service of process under the laws of any such jurisdiction (except service of process
with respect to the offering and sale of the Shares); and to promptly advise you of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Shares for offer or sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable
after this Agreement becomes effective, and thereafter from time to time to furnish to the
Underwriters, as many copies of the Prospectus (or of the Prospectus as
-18-
amended or supplemented if the Company shall have made any amendments or supplements
thereto after the effective date of the Registration Statement) as the Underwriters may
request for the purposes contemplated by the Act; in case any Underwriter is required to
deliver (whether physically or through compliance with Rule 172 under the Act or any similar
rule), in connection with the sale of the Shares, a prospectus after the nine-month period
referred to in Section 10(a)(3) of the Act, or after the time a post-effective amendment to
the Registration Statement is required pursuant to Item 512(a) of Regulation S-K under the
Act, the Company will prepare, at its expense, promptly upon request such amendment or
amendments to the Registration Statement and the Prospectus as may be necessary to permit
compliance with the requirements of Section 10(a)(3) of the Act or Item 512(a) of Regulation
S-K under the Act, as the case may be;
(c) if, at the time this Agreement is executed and delivered, it is necessary or
appropriate for a post-effective amendment to the Registration Statement, or a Registration
Statement under Rule 462(b) under the Act, to be filed with the Commission and become
effective before the Shares may be sold, the Company will use its best efforts to cause such
post-effective amendment or such Registration Statement to be filed and become effective,
and will pay any applicable fees in accordance with the Act, as soon as possible; and the
Company will advise you promptly and, if requested by you, will confirm such advice in
writing, (i) when such post-effective amendment or such Registration Statement has become
effective, and (ii) if Rule 430A under the Act is used, when the Prospectus is filed with
the Commission pursuant to Rule 424(b) under the Act (which the Company agrees to file in a
timely manner in accordance with such Rules);
(d) if, at any time during the period when a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172 under the Act or any
similar rule) in connection with any sale of Shares, the Registration Statement shall cease
to comply with the requirements of the Act with respect to eligibility for the use of the
form on which the Registration Statement was filed with the Commission or the Registration
Statement shall cease to be an “automatic shelf registration statement” (as defined in Rule
405 under the Act) or the Company shall have received, from the Commission, a notice,
pursuant to Rule 401(g)(2), of objection to the use of the form on which the Registration
Statement was filed with the Commission, to (i) promptly notify you, (ii) promptly file with
the Commission a new registration statement under the Act, relating to the Shares, or a
post-effective amendment to the Registration Statement, which new registration statement or
post-effective amendment shall comply with the requirements of the Act and shall be in a
form satisfactory to you, (iii) use its best efforts to cause such new registration
statement or post-effective amendment to become effective under the Act as soon as
practicable, (iv) promptly notify you of such effectiveness and (v) take all other action
necessary or appropriate to permit the public offering and sale of the Shares to continue as
contemplated in the Prospectus; all references herein to the Registration Statement shall be
deemed to include each such new registration statement or post-effective amendment, if any;
(e) if the third anniversary of the initial effective date of the Registration
Statement (within the meaning of Rule 415(a)(5) under the Act) shall occur at any time
-19-
during the period when a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of Shares, to file with the Commission, prior to such third
anniversary, a new registration statement under the Act relating to the Shares, which new
registration statement shall comply with the requirements of the Act (including, without
limitation, Rule 415(a)(6) under the Act) and shall be in a form satisfactory to you; such
new registration statement shall constitute an “automatic shelf registration statement” (as
defined in Rule 405 under the Act); provided, however, that if the Company is not then
eligible to file an “automatic shelf registration statement” (as defined in Rule 405 under
the Act), then such new registration statement need not constitute an “automatic shelf
registration statement” (as defined in Rule 405 under the Act), but the Company shall use
its best efforts to cause such new registration statement to become effective under the Act
as soon as practicable, but in any event within 180 days after such third anniversary and
promptly notify you of such effectiveness; the Company shall take all other action necessary
or appropriate to permit the public offering and sale of the Shares to continue as
contemplated in the Prospectus; all references herein to the Registration Statement shall be
deemed to include each such new registration statement, if any;
(f) if, at any time during the period when a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172 under the Act or any
similar rule) to advise you promptly, confirming such advice in writing, of any request by
the Commission for amendments or supplements to the Registration Statement, any Pre-Pricing
Prospectus, the Prospectus or any Permitted Free Writing Prospectus or for additional
information with respect thereto, or of notice of institution of proceedings for, or the
entry of a stop order, suspending the effectiveness of the Registration Statement and, if
the Commission should enter a stop order suspending the effectiveness of the Registration
Statement, to use its best efforts to obtain the lifting or removal of such order as soon as
possible; if, at any time during the period when a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172 under the Act or any
similar rule) to advise you promptly of any proposal to amend or supplement the Registration
Statement, any Pre-Pricing Prospectus or the Prospectus, and to provide you and
Underwriters’ counsel copies of any such documents for review and comment a reasonable
amount of time prior to any proposed filing and to file no such amendment or supplement to
which you shall object in writing;
(g) subject to Section 4(f) hereof, to file promptly all reports and documents and any
preliminary or definitive proxy or information statement required to be filed by the Company
with the Commission in order to comply with the Exchange Act for so long as a prospectus is
required by the Act to be delivered (whether physically or through compliance with Rule 172
under the Act or any similar rule) in connection with any sale of Shares; and to provide
you, for your review and comment, with a copy of such reports and statements and other
documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of the Exchange Act
during such period a reasonable amount of time prior to any proposed filing, and to file no
such report, statement or document to which you shall have objected in writing; and to
promptly notify you of such filing;
-20-
(h) to pay the fees applicable to the Registration Statement in connection with the
offering of the Shares within the time required by Rule 456 (b)(1)(i) under the Act (without
reliance on the proviso to Rule 456(b)(1)(i) under the Act) and in compliance with Rule
456(b) and Rule 457(r) under the Act;
(i) to advise the Underwriters promptly of the happening of any event within the period
during which a prospectus is required by the Act to be delivered (whether physically or
through compliance with Rule 172 under the Act or any similar rule) in connection with any
sale of Shares, which event could require the making of any change in the Prospectus then
being used so that the Prospectus would not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they are made, not misleading, and to advise the
Underwriters promptly if, during such period, it shall become necessary to amend or
supplement the Prospectus to cause the Prospectus to comply with the requirements of the
Act, and, in each case, during such time, subject to Section 5(f) hereof, to prepare and
furnish, at the Company’s expense, to the Underwriters promptly such amendments or
supplements to such Prospectus as may be necessary to reflect any such change or to effect
such compliance;
(j) to make generally available to its security holders, and to deliver to you, an
earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the
Act) covering a period of twelve months beginning after the effective date of the
Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably
practicable after the termination of such twelve-month period but in any case not later 45
days after the end of the fiscal quarter first occurring after the first anniversary of the
effective date of the Registration Statement (or later than 90 days, if such fiscal quarter
is the last fiscal quarter of the Company’s fiscal year);
(k) to furnish to you two copies of the Registration Statement, as initially filed with
the Commission, and of all amendments thereto (including all exhibits thereto and documents
incorporated by reference therein) and sufficient copies of the foregoing (other than
exhibits) for distribution of a copy to each of the other Underwriters;
(l) to furnish to you as early as practicable prior to the time of purchase and any
additional time of purchase, as the case may be, but not later than two business days prior
thereto, a copy of the latest available unaudited interim and monthly consolidated financial
statements, if any, of the Company and the subsidiaries which have been read by the
Company’s independent registered public accountants, as stated in their letter to be
furnished pursuant to Section 6(c) hereof;
(m) to apply the net proceeds from the sale of the Shares in the manner set forth under
the caption “Use of proceeds” in the Prospectus Supplement;
(n) to pay all costs, expenses, fees and taxes in connection with (i) the preparation
and filing of the Registration Statement, each Basic Prospectus, each Pre-Pricing
Prospectus, the Prospectus Supplement, the Prospectus, each Permitted Free Writing
Prospectus and any amendments or supplements thereto, and the printing and
-21-
furnishing of copies of each thereof to the Underwriters and to dealers (including
costs of mailing and shipment), (ii) the registration, issue, sale and delivery of the
Shares including any stock or transfer taxes and stamp or similar duties payable upon the
sale, issuance or delivery of the Shares to the Underwriters, (iii) the producing, word
processing and/or printing of this Agreement, any Agreement Among Underwriters, any dealer
agreements, any Powers of Attorney and any closing documents (including compilations
thereof) and the reproduction and/or printing and furnishing of copies of each thereof to
the Underwriters and (except closing documents) to dealers (including costs of mailing and
shipment), (iv) the qualification of the Shares for offering and sale under state or foreign
laws and the determination of their eligibility for investment under state or foreign law
(including the legal fees and filing fees and other disbursements of counsel for the
Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal
investment surveys to the Underwriters and to dealers, (v) any listing of the Shares on any
securities exchange or qualification of the Shares for quotation on the NYSE and any
registration thereof under the Exchange Act, (vi) any filing for review of the public
offering of the Shares by FINRA, including the legal fees and filing fees and other
disbursements of counsel to the Underwriters relating to FINRA matters, (vii) the fees and
disbursements of any transfer agent or registrar for the Shares, (viii) the costs and
expenses of the Company relating to presentations or meetings undertaken in connection with
the marketing of the offering and sale of the Shares to prospective investors and the
Underwriters’ sales forces, including, without limitation, expenses associated with the
production of road show slides and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations, travel, lodging and other expenses incurred by
the officers of the Company and any such consultants, and the cost of any aircraft chartered
in connection with the road show, and (ix) the performance of the Company’s other
obligations hereunder;
(o) to comply with Rule 433(d) under the Act (without reliance on Rule 164(b) under the
Act) and with Rule 433(g) under the Act;
(p) beginning on the date hereof and ending on, and including, the date that is 30 days
after the date of the Prospectus Supplement (the “Lock-Up Period”), without the prior
written consent of the Representatives, not to (i) issue, sell, offer to sell, contract or
agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or
agree to dispose of, directly or indirectly, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the meaning of Section
16 of the Exchange Act and the rules and regulations of the Commission promulgated
thereunder, with respect to, any share of Series H Stock or any securities similar to or
ranking on par with or senior to the Series H Stock of the Company (including preferred
interests in the Operating Partnership), or any securities convertible into or exchangeable
or exercisable for, or any warrants or other rights to purchase, the foregoing, (ii) file or
cause to become effective a registration statement under the Act relating to the offer and
sale of any Series H Stock or any securities similar to or ranking on par with or senior to
the Series H Stock of the Company, or any securities convertible into or exchangeable or
exercisable for, or any warrants or other rights to purchase, the foregoing, (iii) enter
into any swap or other arrangement that transfers to another, in whole or in part, any of
the economic consequences of ownership of Series H Stock or any securities similar to or
-22-
ranking on par with or senior to the Series H Stock of the Company, or any securities
convertible into or exchangeable or exercisable for, or any warrants or other rights to
purchase, the foregoing, whether any such transaction is to be settled by delivery of Common
Stock or such other securities, in cash or otherwise or (iv) publicly announce an intention
to effect any transaction specified in clause (i), (ii) or (iii);
(q) except with respect to the Company’s previously announced upcoming earnings release
and earnings conference call, prior to the time of purchase or any additional time of
purchase, as the case may be, to issue no press release or other communication directly or
indirectly and hold no press conferences with respect to the Company or any subsidiary, the
financial condition, results of operations, business, properties, assets, or liabilities of
the Company or any subsidiary, or the offering of the Shares, without your prior consent;
(r) not, at any time at or after the execution of this Agreement, to, directly or
indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the
Act), or use any “prospectus” (within the meaning of the Act) in connection with the offer
or sale of the Shares, in each case other than the Prospectus;
(s) not to, and to cause the subsidiaries not to, take, directly or indirectly, any
action designed, or which will constitute, or has constituted, or might reasonably be
expected to cause or result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares;
(t) to use its best efforts to cause the Series H Stock to be listed on the NYSE and to
maintain the listing of the Series H Stock, including the Shares, on the NYSE;
(u) to maintain a transfer agent and, if necessary under the jurisdiction of
incorporation of the Company, a registrar for the Common Stock and the Series H Stock;
(v) to file the Articles Supplementary, duly authorized and executed by the Company,
with the Maryland State Department of Assessments and Taxation and accepted thereby prior to
the time of purchase; and
(w) reserve and keep available at all times the maximum number of shares of Common
Stock issuable upon conversion of the Shares.
5. Reimbursement of Underwriters’ Expenses. If the Shares are not delivered for any
reason other than the termination of this Agreement pursuant to the fifth paragraph of Section 8
hereof or the default by one or more of the Underwriters in its or their respective obligations
hereunder, the Company shall, in addition to paying the amounts described in Section 4(n) hereof,
reimburse the Underwriters for all of their out-of-pocket expenses, including the fees and
disbursements of their counsel.
6. Conditions of Underwriters’ Obligations. The several obligations of the
Underwriters hereunder are subject to the accuracy of the representations and warranties on the
part of the Company on the date hereof, at the time of purchase and, if applicable, at the
-23-
additional time of purchase, the performance by the Company of its obligations hereunder and
to the following additional conditions precedent:
(a) The Company shall furnish to you at the time of purchase and, if applicable, at the
additional time of purchase, an opinion of Baker & McKenzie, LLP, counsel for the Company,
addressed to the Underwriters, and dated the time of purchase or the additional time of
purchase, as the case may be, with executed copies for each of the other Underwriters, and
in form and substance satisfactory to the Representatives, in the form set forth in Exhibit
B hereto. As to all matters of Maryland law, Baker & McKenzie LLP may rely without
independent verification upon an opinion of Venable LLP; provided a copy of the opinion is
furnished to the Underwriter and Baker & McKenzie LLP states that the Underwriter and such
counsel are justified in relying upon such opinion.
(b) The Company shall furnish to you at the time of purchase and, if applicable, at the
additional time of purchase, an opinion of Jordan Ritter, General Counsel of the Company,
addressed to the Underwriters, and dated the time of purchase or the additional time of
purchase, as the case may be, with executed copies for each of the other Underwriters, and
in form and substance satisfactory to the Representatives, in the form set forth in Exhibit
C hereto.
(c) You shall have received from KPMG LLP letters dated, respectively, the date of this
Agreement, the date of the Prospectus Supplement, the time of purchase and, if applicable,
the additional time of purchase, and addressed to the Underwriters (with executed copies for
each of the Underwriters) in the forms satisfactory to the Representatives, which letters
shall cover, without limitation, the various financial disclosures contained in the
Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any.
(d) You shall have received at the time of purchase and, if applicable, at the
additional time of purchase, the favorable opinion of DLA Piper LLP (US), counsel for the
Underwriters, dated the time of purchase or the additional time of purchase, as the case may
be, in form and substance reasonably satisfactory to the Representatives.
(e) No Prospectus or amendment or supplement to the Registration Statement or the
Prospectus shall have been filed to which you shall have objected in writing.
(f) The Registration Statement and any registration statement required to be filed,
prior to the sale of the Shares, under the Act pursuant to Rule 462(b) shall have been filed
and shall have become effective under the Act. The Prospectus Supplement shall have been
filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 P.M., New
York City time, on the second full business day after the date of this Agreement (or such
earlier time as may be required under the Act).
(g) Prior to and at the time of purchase, and, if applicable, the additional time of
purchase, (i) no stop order with respect to the effectiveness of the Registration Statement
shall have been issued under the Act or proceedings initiated under Section
-24-
8(d) or 8(e) of the Act; (ii) the Registration Statement and all amendments thereto
shall 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;
(iii) none of the Pre-Pricing Prospectuses or the Prospectus, and no amendment or supplement
thereto, shall include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the circumstances
under which they are made, not misleading; (iv) no Disclosure Package, and no amendment or
supplement thereto, shall include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading; and (v) none of the Permitted Free
Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they are made, not misleading.
(h) The Company will, at the time of purchase and, if applicable, at the additional
time of purchase, deliver to you a certificate of its Chief Executive Officer and its Chief
Financial Officer, dated the time of purchase or the additional time of purchase, as the
case may be, in the form attached as Exhibit D hereto.
(i) The Company shall have furnished to you such other documents and certificates as to
the accuracy and completeness of any statement in the Registration Statement, any
Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus as of the
time of purchase and, if applicable, the additional time of purchase, as you may reasonably
request.
(j) The Shares shall have been approved for listing on the NYSE, subject only to notice
of issuance at or prior to the time of purchase or the additional time of purchase, as the
case may be.
(k) FINRA shall not have raised any objection with respect to the fairness or
reasonableness of the underwriting, or other arrangements of the transactions, contemplated
hereby.
7. Effective Date of Agreement; Termination. This Agreement shall become effective
when the parties hereto have executed and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be subject to termination in the
absolute discretion of the Representatives, if (1) since the time of execution of this Agreement or
the earlier respective dates as of which information is given in the Registration Statement, the
Pre-Pricing Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, there
has been any change or any development involving a prospective change in the business, properties,
management, financial condition or results of operations of the Company and the subsidiaries taken
as a whole, the effect of which change or development is, in the sole judgment of the
Representatives, so material and adverse as to make it impractical or inadvisable to proceed with
the public offering or the delivery of the Shares on the terms and in the manner contemplated in
the Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any, or (2) since the time of
-25-
execution of this Agreement, there shall have occurred: (A) a suspension or material
limitation in trading in securities generally on the NYSE, the American Stock Exchange or the
NASDAQ; (B) a suspension or material limitation in trading in the Company’s securities on the NYSE;
(C) a general moratorium on commercial banking activities declared by either federal or New York
State authorities or a material disruption in commercial banking or securities settlement or
clearance services in the United States; (D) an outbreak or escalation of hostilities or acts of
terrorism involving the United States or a declaration by the United States of a national emergency
or war; or (E) any other calamity or crisis or any change in financial, political or economic
conditions in the United States or elsewhere, if the effect of any such event specified in clause
(D) or (E), in the sole judgment of the Representatives, makes it impractical or inadvisable to
proceed with the public offering or the delivery of the Shares on the terms and in the manner
contemplated in the Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and the
Permitted Free Writing Prospectuses, if any, or (3) since the time of execution of this Agreement,
there shall have occurred any downgrading, or any notice or announcement shall have been given or
made of: (A) any intended or potential downgrading or (B) any watch, review or possible change
that does not indicate an affirmation or improvement in the rating accorded any securities of or
guaranteed by the Company or any subsidiary by any “nationally recognized statistical rating
organization,” as that term is defined in Rule 436(g)(2) under the Act.
If the Representatives elect to terminate this Agreement as provided in this Section 7, the
Company and each other Underwriter shall be notified promptly in writing.
If the sale to the Underwriters of the Shares, as contemplated by this Agreement, is not
carried out by the Underwriters for any reason permitted under this Agreement, or if such sale is
not carried out because the Company shall be unable to comply with any of the terms of this
Agreement, the Company shall not be under any obligation or liability under this Agreement (except
to the extent provided in Sections 4(n), 5 and 9 hereof), and the Underwriters shall be under no
obligation or liability to the Company under this Agreement (except to the extent provided in
Section 9 hereof) or to one another hereunder.
8. Increase in Underwriters’ Commitments. Subject to Sections 6 and 7 hereof, if any
Underwriter shall default in its obligation to take up and pay for the Firm Shares to be purchased
by it hereunder (otherwise than for a failure of a condition set forth in Section 6 hereof or a
reason sufficient to justify the termination of this Agreement under the provisions of Section 7
hereof) and if the number of Firm Shares which all Underwriters so defaulting shall have agreed but
failed to take up and pay for does not exceed 10% of the total number of Firm Shares, the
non-defaulting Underwriters (including the Underwriters, if any, substituted in the manner set
forth below) shall take up and pay for (in addition to the aggregate number of Firm Shares they are
obligated to purchase pursuant to Section 1 hereof) the number of Firm Shares agreed to be
purchased by all such defaulting Underwriters, as hereinafter provided. Such Shares shall be taken
up and paid for by such non-defaulting Underwriters in such amount or amounts as you may designate
with the consent of each Underwriter so designated or, in the event no such designation is made,
such Shares shall be taken up and paid for by all non-defaulting Underwriters pro rata in
proportion to the aggregate number of Firm Shares set forth opposite the names of such
non-defaulting Underwriters in Schedule A.
-26-
Without relieving any defaulting Underwriter from its obligations hereunder, the Company
agrees with the non-defaulting Underwriters that it will not sell any Firm Shares hereunder unless
all of the Firm Shares are purchased by the Underwriters (or by substituted Underwriters selected
by you with the approval of the Company or selected by the Company with your approval).
If a new Underwriter or Underwriters are substituted by the Underwriters or by the Company for
a defaulting Underwriter or Underwriters in accordance with the foregoing provision, the Company or
you shall have the right to postpone the time of purchase for a period not exceeding five business
days in order that any necessary changes in the Registration Statement and the Prospectus and other
documents may be effected.
The term “Underwriter” as used in this Agreement shall refer to and include any Underwriter
substituted under this Section 8 with like effect as if such substituted Underwriter had originally
been named in Schedule A hereto.
If the aggregate number of Firm Shares which the defaulting Underwriter or Underwriters agreed
to purchase exceeds 10% of the total number of Firm Shares which all Underwriters agreed to
purchase hereunder, and if neither the non-defaulting Underwriters nor the Company shall make
arrangements within the five business day period stated above for the purchase of all the Firm
Shares which the defaulting Underwriter or Underwriters agreed to purchase hereunder, this
Agreement shall terminate without further act or deed and without any liability on the part of the
Company to any Underwriter and without any liability on the part of any non-defaulting Underwriter
to the Company. Nothing in this paragraph, and no action taken hereunder, shall relieve any
defaulting Underwriter from liability in respect of any default of such Underwriter under this
Agreement.
9. Indemnity and Contribution.
(a) The Company agrees to indemnify, defend and hold harmless each Underwriter, its
partners, directors and officers, and any person who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the successors and
assigns of all of the foregoing persons, from and against any loss, damage, expense,
liability or claim (including the reasonable cost of investigation) which, jointly or
severally, any such Underwriter or any such person may incur under the Act, the Exchange
Act, the common law or otherwise, insofar as such loss, damage, expense, liability or claim
arises out of or is based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or in the Registration Statement as
amended by any post-effective amendment thereof by the Company) or arises out of or is based
upon any omission or alleged omission to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as any such loss,
damage, expense, liability or claim arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in, and in conformity with information
concerning such Underwriter furnished in writing by or on behalf of such Underwriter through
you to the Company expressly for use in, the Registration Statement or arises out of or is
based upon any omission or alleged omission to state a material fact in the Registration
Statement in connection with
-27-
such information, which material fact was not contained in such information and which
material fact was required to be stated in such Registration Statement or was necessary to
make such information not misleading or (ii) any untrue statement or alleged untrue
statement of a material fact included in any Prospectus (the term Prospectus for the purpose
of this Section 9 being deemed to include Basic Prospectus, any Pre-Pricing Prospectus, the
Prospectus Supplement, the Prospectus and any amendments or supplements to the foregoing),
in any Permitted Free Writing Prospectus, in any “issuer information” (as defined in Rule
433 under the Act) of the Company or in any Prospectus together with any combination of one
or more of the Permitted Free Writing Prospectuses, if any, or arises out of or is based
upon any omission or alleged omission to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not
misleading, except, with respect to such Prospectus or Permitted Free Writing Prospectus,
insofar as any such loss, damage, expense, liability or claim arises out of or is based upon
any untrue statement or alleged untrue statement of a material fact contained in, and in
conformity with information concerning such Underwriter furnished in writing by or on behalf
of such Underwriter through you to the Company expressly for use in, such Prospectus or
Permitted Free Writing Prospectus or arises out of or is based upon any omission or alleged
omission to state a material fact in such Prospectus or Permitted Free Writing Prospectus in
connection with such information, which material fact was not contained in such information
and which material fact was necessary in order to make the statements in such information,
in the light of the circumstances under which they were made, not misleading.
(b) Each Underwriter severally agrees to indemnify, defend and hold harmless the
Company, its directors and officers, and any person who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the successors and
assigns of all of the foregoing persons, from and against any loss, damage, expense,
liability or claim (including the reasonable cost of investigation) which, jointly or
severally, the Company or any such person may incur under the Act, the Exchange Act, the
common law or otherwise, insofar as such loss, damage, expense, liability or claim arises
out of or is based upon any untrue statement or alleged untrue statement of a material fact
contained in, and in conformity with information concerning such Underwriter furnished in
writing by or on behalf of such Underwriter through you to the Company expressly for use in,
the Registration Statement (or in the Registration Statement as amended by any
post-effective amendment thereof by the Company), or arises out of or is based upon any
omission or alleged omission to state a material fact in such Registration Statement in
connection with such information, which material fact was not contained in such information
and which material fact was required to be stated in such Registration Statement or was
necessary to make such information not misleading.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against a
person (an “indemnified party”) in respect of which indemnity may be sought against the
Company or an Underwriter (as applicable, the “indemnifying party”) pursuant to subsection
(a) or (b), respectively, of this Section 9, such indemnified party shall promptly notify
such indemnifying party in writing of the institution of such Proceeding and such
indemnifying party shall assume the defense of such Proceeding, including the
-28-
employment of counsel reasonably satisfactory to such indemnified party and payment of
all fees and expenses; provided, however, that the omission to so notify such indemnifying
party shall not relieve such indemnifying party from any liability which such indemnifying
party may have to any indemnified party or otherwise. The indemnified party or parties
shall have the right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such indemnified party or parties unless
the employment of such counsel shall have been authorized in writing by the indemnifying
party in connection with the defense of such Proceeding or the indemnifying party shall not
have, within a reasonable period of time in light of the circumstances, employed counsel to
defend such Proceeding or such indemnified party or parties shall have reasonably concluded
that there may be defenses available to it or them which are different from, additional to
or in conflict with those available to such indemnifying party (in which case such
indemnifying party shall not have the right to direct the defense of such Proceeding on
behalf of the indemnified party or parties), in any of which events such fees and expenses
shall be borne by such indemnifying party and paid as incurred (it being understood,
however, that such indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to any local counsel) in any one Proceeding or series of
related Proceedings in the same jurisdiction representing the indemnified parties who are
parties to such Proceeding). The indemnifying party shall not be liable for any settlement
of any Proceeding effected without its written consent but, if settled with its written
consent, such indemnifying party agrees to indemnify and hold harmless the indemnified party
or parties from and against any loss or liability by reason of such settlement.
Notwithstanding the foregoing sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second sentence of this Section 9(c), then the indemnifying
party agrees that it shall be liable for any settlement of any Proceeding effected without
its written consent if (i) such settlement is entered into more than 60 business days after
receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party
shall not have fully reimbursed the indemnified party in accordance with such request prior
to the date of such settlement and (iii) such indemnified party shall have given the
indemnifying party at least 30 days’ prior notice of its intention to settle. No
indemnifying party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened Proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of such
Proceeding and does not include an admission of fault or culpability or a failure to act by
or on behalf of such indemnified party.
(d) If the indemnification provided for in this Section 9 is unavailable to an
indemnified party under subsections (a) and (b) of this Section 9 or insufficient to hold an
indemnified party harmless in respect of any losses, damages, expenses, liabilities or
claims referred to therein, then each applicable indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such losses, damages,
expenses, liabilities or claims (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters on the other
-29-
hand from the offering of the Shares or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the relative fault
of the Company on the one hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, damages, expenses, liabilities or
claims, as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other shall be deemed to
be in the same respective proportions as the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses) received by the
Company, and the total underwriting discounts and commissions received by the Underwriters,
bear to the aggregate public offering price of the Shares. The relative fault of the
Company on the one hand and of the Underwriters on the other shall be determined by
reference to, among other things, whether the untrue statement or alleged untrue statement
of a material fact or omission or alleged omission relates to information supplied by the
Company or by the Underwriters and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission. The amount
paid or payable by a party as a result of the losses, damages, expenses, liabilities and
claims referred to in this subsection shall be deemed to include any legal or other fees or
expenses reasonably incurred by such party in connection with investigating, preparing to
defend or defending any Proceeding.
(e) The Company and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 9 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred to in
subsection (d) above. Notwithstanding the provisions of this Section 9, no Underwriter
shall be required to contribute any amount in excess of the amount by which the total price
at which the Shares underwritten by such Underwriter and distributed to the public were
offered to the public exceeds the amount of any damage which such Underwriter has otherwise
been required to pay by reason of such untrue statement or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to
contribute pursuant to this Section 9 are several in proportion to their respective
underwriting commitments and not joint.
(f) The indemnity and contribution agreements contained in this Section 9 and the
covenants, warranties and representations of the Company contained in this Agreement shall
remain in full force and effect regardless of any investigation made by or on behalf of any
Underwriter, its partners, directors or officers or any person (including each partner,
officer or director of such person) who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, or by or on behalf of the Company,
its directors or officers or any person who controls the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, and shall survive any termination
of this Agreement or the issuance and delivery of the Shares. The Company and each
Underwriter agree promptly to notify each other of the commencement of any Proceeding
against it and, in the case of the Company, against any
-30-
of the Company’s officers or directors in connection with the issuance and sale of the
Shares, or in connection with the Registration Statement, any Basic Prospectus, any
Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus.
10. Information Furnished by the Underwriters. The statements set forth set forth in
the “Over-Allotment Option” and “Price Stabilization and Short Positions” paragraphs under the
caption “Underwriting” in the Prospectus Supplement, only insofar as such statements relate to the
amount of selling concession and reallowance or to over-allotment and stabilization activities that
may be undertaken by the Underwriters, constitute the only information furnished by or on behalf of
the Underwriters, as such information is referred to in Sections 3 and 9 hereof.
11. Notices. Except as otherwise herein provided, all statements, requests, notices
and agreements shall be in writing or by telegram or facsimile and, if to the Underwriters, shall
be sufficient in all respects if delivered or sent to Wells Fargo Securities, LLC, 301 S. College
Street, Charlotte, North Carolina 28288, Attention: Transaction Management, Fascimile:
704-383-9165, Raymond James & Associates, Inc., 880 Carillon Parkway, St. Petersburg, Florida
33716, attention of General Counsel, Equity Capital Markets, and, if to the Company, shall be
sufficient in all respects if delivered or sent to the Company at the offices of the Company at 925
East Meadow Drive, Palo Alto, California 94303, Attention: Michael T. Dance.
12. Governing Law; Construction. This Agreement and any claim, counterclaim or
dispute of any kind or nature whatsoever arising out of or in any way relating to this Agreement
(“Claim”), directly or indirectly, shall be governed by, and construed in accordance with, the laws
of the State of New York. The section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
13. Submission to Jurisdiction. Except as set forth below, no Claim may be commenced,
prosecuted or continued in any court other than the courts of the State of New York located in the
City and County of New York or in the United States District Court for the Southern District of New
York, which courts shall have jurisdiction over the adjudication of such matters, and the Company
consents to the jurisdiction of such courts and personal service with respect thereto. The Company
hereby consents to personal jurisdiction, service and venue in any court in which any Claim arising
out of or in any way relating to this Agreement is brought by any third party against any
Underwriter or any indemnified party. Each Underwriter and the Company (on its behalf and, to the
extent permitted by applicable law, on behalf of its equity holders and affiliates) waive all right
to trial by jury in any action, proceeding or counterclaim (whether based upon contract, tort or
otherwise) in any way arising out of or relating to this Agreement. The Company agrees that a
final judgment in any such action, proceeding or counterclaim brought in any such court shall be
conclusive and binding upon the Company and may be enforced in any other courts to the jurisdiction
of which the Company is or may be subject, by suit upon such judgment.
14. Parties at Interest. The Agreement herein set forth has been and is made solely
for the benefit of the Underwriters and the Company and to the extent provided in Section 9 hereof
the controlling persons, partners, directors and officers referred to in such Section, and their
respective successors, assigns, heirs, personal representatives and executors and administrators.
No other person, partnership, association or corporation (including a purchaser,
-31-
as such purchaser, from any of the Underwriters) shall acquire or have any right under or by
virtue of this Agreement.
15. No Fiduciary Relationship. The Company hereby acknowledges that the Underwriters
are acting solely as underwriters in connection with the purchase and sale of the Company’s
securities. The Company further acknowledges that the Underwriters are acting pursuant to a
contractual relationship created solely by this Agreement entered into on an arm’s length basis,
and in no event do the parties intend that the Underwriters act or be responsible as a fiduciary to
the Company, its management, stockholders or creditors or any other person in connection with any
activity that the Underwriters may undertake or have undertaken in furtherance of the purchase and
sale of the Company’s securities, either before or after the date hereof. The Underwriters hereby
expressly disclaim any fiduciary or similar obligations to the Company, either in connection with
the transactions contemplated by this Agreement or any matters leading up to such transactions, and
the Company hereby confirms its understanding and agreement to that effect. The Company and the
Underwriters agree that they are each responsible for making their own independent judgments with
respect to any such transactions and that any opinions or views expressed by the Underwriters to
the Company regarding such transactions, including, but not limited to, any opinions or views with
respect to the price or market for the Company’s securities, do not constitute advice or
recommendations to the Company. The Company hereby waives and releases, to the fullest extent
permitted by law, any claims that the Company may have against the Underwriters with respect to any
breach or alleged breach of any fiduciary or similar duty to the Company in connection with the
transactions contemplated by this Agreement or any matters leading up to such transactions.
16. Counterparts. This Agreement may be signed by the parties in one or more
counterparts which together shall constitute one and the same agreement among the parties.
17. Successors and Assigns. This Agreement shall be binding upon the Underwriters and
the Company and their successors and assigns and any successor or assign of any substantial portion
of the Company’s and any of the Underwriters’ respective businesses and/or assets.
[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]
-32-
If the foregoing correctly sets forth the understanding between the Company and the several
Underwriters, please so indicate in the space provided below for that purpose, whereupon this
Agreement and your acceptance shall constitute a binding agreement between the Company and the
Underwriters, severally.
| |
|
|
|
|
| |
Very truly yours,
Essex Property Trust, Inc.
|
|
| |
By: |
/s/ Michael T. Dance |
|
| |
|
Name: |
Michael T. Dance |
|
| |
|
Title: |
Executive Vice President
and Chief Financial Officer |
|
| |
Accepted and agreed to as of the date first above written, on behalf of itself and the other
several Underwriters named in Schedule A.
| |
|
|
|
|
WELLS FARGO SECURITIES, LLC
RAYMOND JAMES & ASSOCIATES, INC.
|
|
|
| By: |
Wells Fargo Securities, LLC
|
|
|
| |
|
|
| By: |
/s/ Carolyn Hurley |
|
|
| |
Name: |
Carolyn Hurley |
|
|
| |
Title: |
Director |
|
|
| |
|
|
| By: |
Raymond James & Associates, Inc.
|
|
|
| |
|
|
|
| By: |
/s/ Brad Butcher |
|
|
| |
Name: |
Brad Butcher |
|
|
| |
Title: |
Managing Director |
|
|
| |
SCHEDULE A
| |
|
|
|
|
| Underwriter |
|
Number of Firm Shares |
|
Wells Fargo Securities, LLC |
|
|
910,000 |
|
Raymond James & Associates, Inc. |
|
|
910,000 |
|
Barclays Capital Inc. |
|
|
162,500 |
|
RBC Capital Markets, LLC |
|
|
162,500 |
|
FBR Capital Markets & Co. |
|
|
91,000 |
|
Janney Montgomery Scott LLC |
|
|
91,000 |
|
Morgan Keegan & Company, Inc. |
|
|
91,000 |
|
Robert W. Baird & Co. Incorporated |
|
|
91,000 |
|
Stifel, Nicolaus & Company, Incorporated |
|
|
91,000 |
|
|
|
|
|
Total |
|
|
2,600,000 |
|
|
|
|
|
SCHEDULE B
Permitted Free Writing Prospectuses
Dated April 8, 2011
Filed Pursuant to Rule 433
Registration Statement No. 333-165693
Relating to Preliminary Prospectus Supplement
Dated April 7, 2011 to Prospectus Dated March 25, 2010
ESSEX PROPERTY TRUST, INC
7.125% Series H Cumulative Redeemable Preferred Stock
(Liquidation Preference $25.00 per share)
FINAL PRICING TERMS
| |
|
|
|
Issuer:
|
|
Essex Property Trust, Inc. |
|
|
|
Title of Shares:
|
|
7.125% Series H Cumulative Redeemable Preferred Stock |
|
|
|
Number of Shares:
|
|
2,600,000 shares of Series H Preferred Stock (2,990,000 shares if the underwriters’ over-allotment
option is exercised in full) |
|
|
|
Maturity:
|
|
Perpetual |
|
|
|
Trade Date:
|
|
April 8, 2011 |
|
|
|
Settlement Date:
|
|
April 13, 2011 (T+3) |
|
|
|
Dividend Rate:
|
|
7.125% per annum of the $25.00 liquidation preference (equivalent to $1.78125 per annum per share) |
|
|
|
Dividend Payment Dates:
|
|
January 15, April 15, July 15 and October 15, commencing July 15, 2011 |
|
|
|
Conversion Rights:
|
|
Upon the occurrence of a Change of Control, investors will have the right (unless, prior to the Change
of Control Conversion Date, the Issuer has provided or provides notice of its election to redeem their
Series H Preferred Stock) to convert some or all of their Series H Preferred Stock (the “Change of
Control Conversion Right”) into a number of the Issuer’s common stock, par value $0.0001 per share, per
Series H Preferred Stock to be converted equal to the lesser of: |
| |
• |
|
the quotient obtained by dividing (i) the sum
of the $25.00 liquidation preference plus the
amount of any accrued and unpaid dividends to,
but not including, the Change of Control
Conversion Date (unless the Change of Control
Conversion Date is after a record date for a
Series H Preferred Stock dividend payment and
prior to the corresponding Series H Preferred
Stock dividend payment date, in which case no
additional amount for such accrued and unpaid
dividends will be included in this sum) by (ii)
the Common Share Price; and |
| |
• |
|
0.3995 (the “Share Cap”), subject to certain
adjustments; |
| |
|
|
|
|
|
subject, in each case, to provisions for the receipt
of alternative consideration, as described in the
preliminary prospectus supplement. |
|
|
|
|
|
If the Issuer has provided or provides a redemption
notice, whether pursuant to the Issuer’s special
optional redemption right in connection with a Change
of Control or the Issuer’s optional redemption right,
investors will not have any right to convert their
Series H Preferred Stock in connection with the
Change of Control Conversion Right and any Series H
Preferred Stock subsequently selected for redemption
that have been tendered for conversion will be
redeemed on the related date of redemption instead of
converted on the Change of Control Conversion Date. |
|
|
|
|
|
A “Change of Control” is when, after the original
issuance of the Series H Preferred Stock, the
following have occurred and are continuing: |
| |
• |
|
the acquisition by any person, including any
syndicate or group deemed to be a “person” under
Section 13(d)(3) of the Securities Exchange Act
of 1934, as amended, of beneficial ownership,
directly or indirectly, through a purchase,
merger or other acquisition transaction or
series of purchases, mergers or other
acquisition transactions of shares of the Issuer
entitling that person to exercise more than 50%
of the total voting power of all shares of the
Issuer entitled to vote generally in elections
of directors (except that such person will be
deemed to have beneficial ownership of all
securities that such person has the right to
acquire, whether such right is currently
exercisable or is exercisable only upon the
occurrence of a subsequent condition); and |
| |
| |
• |
|
following the closing of any transaction
referred to in the bullet point above, neither
the Issuer nor the acquiring or surviving entity
has a class of common securities (or American
Depositary Receipts representing such
securities) listed on the New York Stock
Exchange, the NYSE Amex Equities or the NASDAQ
Stock Market or listed or quoted on an exchange
or quotation system that is a successor to the
NYSE, the NYSE Amex or NASDAQ. |
| |
|
|
|
|
|
The “Change of Control Conversion Date” will be a
business day that is no less than 20 days nor more
than 35 days after the date on which the Issuer
provides the required notice of the occurrence of a
Change of Control to the holders of Series H
Preferred Stock. |
|
|
|
|
|
The “Common Share Price” will be: (i) the amount of
cash consideration per share of common stock, if the
consideration to be received in the Change of Control
by holders of the Issuer’s common stock is solely
cash; and (ii) the average of the closing prices for
the Issuer’s common stock on the New York Stock
Exchange for the 10 consecutive trading days
immediately preceding, but not including, the
effective date of |
B-2
| |
|
|
|
|
|
the Change of Control, if the consideration to be
received in the Change of Control by holders of the
Issuer’s common shares is other than solely cash. |
|
|
|
Optional Redemption:
|
|
On and after April 13, 2016, the Issuer
may, at its option, redeem the Series H
Preferred Stock, in whole or from time to
time in part, by paying $25.00 per share,
plus any accrued and unpaid dividends to,
but not including, the date of redemption
(subject to the special optional
redemption right described below). |
|
|
|
Special Optional Redemption:
|
|
Upon the occurrence of a Change of
Control, the Issuer may, at its option,
redeem the Series H Preferred Stock, in
whole or in part and within 120 days after
the first date on which such Change of
Control occurred, by paying $25.00 per
share, plus any accrued and unpaid
dividends to and including the date of
redemption. If, prior to the Change of
Control Conversion Date, the Issuer has
provided or provides notice of redemption
with respect to the Series H Preferred
Stock (whether pursuant to the Issuer’s
optional redemption right or its special
optional redemption right), investors will
not have the conversion right described
above. |
|
|
|
Yield:
|
|
7.125% |
|
|
|
Public Offering Price:
|
|
$25.00 per share |
|
|
|
Purchase Price by Underwriters:
|
|
$24.2125 per share |
|
|
|
Net Proceeds (before expenses):
|
|
$62,952,500 ($72,395,375 if the
underwriters’ over-allotment option is
exercised in full) |
|
|
|
Underwriting Discount:
|
|
$2,047,500 ($2,354,625 if the
underwriters’ over-allotment option is
exercised in full) |
|
|
|
Joint Book-Running Managers:
|
|
Wells Fargo Securities, LLC
Raymond James & Associates, Inc. |
|
|
|
Joint Lead Managers:
|
|
Barclays Capital Inc.
RBC Capital Markets, LLC |
|
|
|
Co-Managers:
|
|
FBR Capital Markets & Co.
Janney Montgomery Scott LLC
Morgan Keegan & Company, Inc.
Robert W. Baird & Co. Incorporated
Stifel, Nicolaus & Company, Incorporated |
|
|
|
Listing/Symbol:
|
|
NYSE / “ESSPrH” |
|
|
|
ISIN:
|
|
US2971784028 |
|
|
|
CUSIP:
|
|
297178 402 |
The issuer has filed a registration statement (including a prospectus dated March 25, 2010 and
a preliminary prospectus supplement dated April 7, 2011) with the SEC for the offering to which
this communication relates. Before you invest, you should read the prospectus in that registration
statement, the related preliminary prospectus supplement 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 EDGAR on the SEC Web site at
B-3
www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in
the offering will arrange to send you the prospectus and preliminary prospectus supplement if you
request it by calling Wells Fargo Securities, LLC toll-free at 1-800-326-5897 or Raymond James &
Associates, Inc. toll-free at 1-800-248-8863.
B-4
SCHEDULE C
Subsidiaries formed since December 31, 2010
None.
EXHIBIT A
OPINION OF BAKER & McKENZIE LLP
[date]
WELLS FARGO SECURITIES, LLC
RAYMOND JAMES & ASSOCIATES, INC.
as Representatives of the several Underwriters
Wells Fargo Securities, LLC
301 S. College Street
Charlotte, North Carolina 28288
Raymond James & Associates, Inc.
880 Carillon Parkway
St. Petersburg, Florida 33716
Ladies and Gentlemen:
[Entry language to come from company counsel]
| 1. |
|
The Company is a corporation duly incorporated and existing under and by virtue of the laws
of the State of Maryland and is in good standing with the State Department of Assessments and
Taxation of Maryland. The Company has the corporate power to own, lease and operate its
properties and conduct its business in all material respects as described under the headings
“Item 1 Business” and “Item 2 Properties” in the Company’s Annual Report on Form 10-K for the
year ended December 31, 2010. Essex Portfolio, L.P. a California limited partnership (the
“Operating Partnership”), is validly existing as a limited partnership in good standing under
the laws of the jurisdiction of its organization with the power to own, lease and operate its
properties. |
| |
| 2. |
|
To our knowledge, each of the Company and the Operating Partnership is duly qualified or
registered to transact business in each jurisdiction set forth on Schedule 1 hereto in which
the failure, individually or in the aggregate, to be so qualified could reasonably be expected
to result in a Material Adverse Change. To our knowledge, other than the Company’s interests
in the subsidiaries set forth in Exhibit 21.1 to the Company’s Annual Report on Form 10-K for
the year ended December 31, 2010, and subsidiaries formed since December 31, 2010, the Company
does not own, directly or indirectly, any capital stock or other equity securities of any
other corporation or any ownership interest in any limited liability company, partnership,
joint venture or other association. |
| |
| 3. |
|
As of December 31, 2010, the authorized capitalization of the Company was as set forth under
the caption “Description of Capital Stock” in the Basic Prospectus. The Common Stock, the
Company’s 7.815% Series F Cumulative Redeemable Preferred Stock, par value $0.0001 per share,
and the Company’s 4.875% Series G Cumulative Convertible Preferred Stock, par value $0.0001
per share, conform as to legal matters in all material |
A-1
| |
|
respects to the descriptions thereof contained in the Basic Prospectus under the caption
“Description of Capital Stock.” |
| 4. |
|
The execution, delivery and performance of the Underwriting Agreement by the Company and the
transactions contemplated thereby do not conflict with, or result in any breach of, or
constitute a default under (nor constitute an event that with notice, lapse of time or both
would constitute a breach of or default under), (i) the charter or bylaws of the Company, (ii)
any of the agreements listed as Exhibits 10.1 through 10.24 to the Company’s Annual Report on
Form 10-K for the year ended December 31, 2010 or (iii) to our knowledge, any Applicable Law
or any decree, judgment or order applicable to the Company (other than state and foreign
securities or blue sky laws, as to which we express no opinion), except in the case of clauses
(ii) and (iii) for such conflicts, breaches or defaults, which individually or in the
aggregate could not be reasonably expected to have a Material Adverse Change. |
| |
| 5. |
|
The Company has the corporate power to execute and deliver the Agreement and to issue, sell
and deliver the Shares as contemplated in this Agreement. This Agreement has been duly
authorized, executed and, so far as is known to us, delivered by the Company. |
| |
| 6. |
|
No approval, authorization, consent or order of, or filing with, any federal or state
governmental or regulatory commission, board, body, authority or agency is required under
Applicable Law in connection with the execution, delivery and performance of the Underwriting
Agreement, or the consummation of the transactions contemplated thereby, by the Company, other
than such as have been obtained or made under the Act or the Securities Exchange Act of 1934,
as amended; provided, however, that we do not express any opinion as to any necessary
qualification under the securities or blue sky laws of the various jurisdictions in which the
Shares are being offered by Underwriter or any approval of the underwriting terms and
arrangements relating to the offering of the Shares by FINRA. |
| |
| 7. |
|
The Shares, when issued and delivered by the Company pursuant to the resolutions of the
Company’s Board of Directors approving such issuance and the Underwriting Agreement and
against payment of the consideration set forth therein, will be duly authorized, validly
issued, fully paid and nonassessable. |
| |
| 8. |
|
The issuance and sale of the Shares by the Company is not subject to preemptive or other
similar rights arising by operation of the Maryland General Corporation Law, under the charter
or bylaws of the Company or under any agreement known to us to which the Company is a party. |
| |
| 9. |
|
The shares of Common Stock reserved for issuance upon conversion of the Shares have been duly
authorized and, when issued in accordance with the Articles Supplementary, will be validly
issued, fully paid and non-assessable. |
| |
| 10. |
|
The Articles Supplementary that created the Shares have been duly authorized by all necessary
corporate action on the part of the Company. |
A-2
| 11. |
|
To our knowledge, except as otherwise described in the Registration Statement, the Disclosure
Package, the Prospectus, the documents incorporated therein by reference or the exhibits filed
in connection therewith, there are no persons with registration or other similar rights to
have any securities registered pursuant to the Registration Statement. |
| |
| 12. |
|
At the time the Registration Statement became effective and as of the date of the
Underwriting Agreement, the Registration Statement and, as of the date of the Underwriting
Agreement and the Time of Purchase, the Prospectus (in each case, other than the financial
statements (including notes), financial schedules and other financial and statistical data
included or incorporated by reference in, or excluded from, the Registration Statement and the
Prospectus, as to which we express no opinion) complied as to form in all material respects
with the requirements of the Act and the rules and regulations promulgated thereunder. |
| |
| 13. |
|
The documents incorporated by reference in the Registration Statement and the Prospectus
(other than the financial statements (including notes) and related schedules and other
financial or accounting information included therein or omitted therefrom, as to which we
express no opinion), when they became effective or were filed with the Commission, as the case
may be, complied as to form in all material respects with the requirements of the Exchange Act
and the rules and regulations promulgated thereunder. |
| |
| 14. |
|
The statements under the captions “Description of Capital Stock” and “Certain Provisions of
Essex’s Charter and Bylaws” in the Prospectus, insofar as such statements constitute a summary
of the legal matters referred to therein, constitute accurate summaries thereof in all
material respects as of the date of such statements. |
| |
| 15. |
|
To our knowledge, there are no actions, suits or proceedings or inquiries or investigations,
pending or threatened, against the Company or any of its officers and directors or to which
the Company’s assets (excluding the Company’s direct or indirect interests in the
subsidiaries) are subject, at law or in equity, before or by any federal, state, local or
foreign governmental or regulatory commission, board, body, authority, arbitration panel or
agency that are required to be described in the Disclosure Package or Prospectus or the
documents incorporated therein by reference but are not so described. |
| |
| 16. |
|
The Company is not an “investment company” required to register under the Investment Company
Act of 1940, as amended, (the “1940 Act”) or a company “controlled” by an “investment company”
within the meaning of the 1940 Act. |
| |
| 17. |
|
Commencing with its taxable year ended December 31, 1994 through its taxable year ended
December 31, 2010, the Company has been organized and has operated in conformity with the
requirements for qualification and taxation as a REIT under the Code and its organization and
proposed method of operation will enable it to continue to meet the requirements for
qualification and taxation as a REIT; and |
| |
| 18. |
|
The statements contained in the Basic Prospectus, the Pre-Pricing Prospectus and the
Prospectus under the captions “Certain Material Federal Income Tax Considerations” and
“Additional U.S. Federal Income Tax Considerations” insofar as such statements |
A-3
| |
|
constitute matters of law, summaries of legal matters, or legal conclusions, have been
reviewed by us and fairly present and summarize, in all material respects, the matters
referred to therein. |
The Registration Statement became effective under the Securities Act on March 25, 2010 and, to
our knowledge, no stop order suspending the effectiveness of the Registration Statement has been
issued under the Securities Act or proceedings therefor initiated or threatened by the Commission.
In addition, we have reviewed the Registration Statement, the Pre-Pricing Prospectus, the
Prospectus and the Disclosure Package and have participated in conferences with officers and other
representatives of the Company, representatives of the independent public accountants of the
Company and representatives of the Underwriters at which the contents of the Registration
Statement, the Pre-Pricing Prospectus, the Prospectus and the Disclosure Package (as defined below)
were discussed and, although we are not passing upon and do not assume responsibility for the
accuracy, completeness or fairness of the statements contained in the Registration Statement, the
Pre-Pricing Prospectus, the Prospectus and the Disclosure Package (as defined below) (except as and
to the extent stated in subparagraphs 14 and 18 above), on the basis of the foregoing, nothing has
come to our attention that causes us to believe that (i) the Registration Statement, at the
Effective Time, 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, (ii)
the Disclosure Package (as defined below), as of the Applicable Time (as defined below), included
an untrue statement of a material fact or omitted to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not
misleading or (iii) the Prospectus, as of the date of the Prospectus Supplement, or as of the date
hereof, 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 the light of the circumstances
under which they were made, not misleading (it being understood that we express no with respect to
the financial statements and schedules, and other financial data derived therefrom, included in the
Registration Statement, the Disclosure Package or the Prospectus). As used herein, (A) “Disclosure
Package” means the Pre-Pricing Prospectus together with the Permitted Free Writing Prospectus
identified on Exhibit [A] to the Underwriting Agreement, and (B) “Applicable Time” means 2:00 P.M.,
New York City time, on April 8, 2011.
The limitations inherent in the independent verification of factual matters and the character
of determinations involved in the preparation of a disclosure document are such, however, that we
do not assume any responsibility, except as otherwise stated in opinion 14 and 18 above, for the
accuracy, completeness or fairness of the statements contained in the Registration Statement, the
Disclosure Package or Prospectus or any amendments or supplements thereto (including any of the
documents incorporated by reference therein).
Capitalized terms used herein without definition shall have the respective meanings ascribed
to them in the Underwriting Agreement.
A-4
EXHIBIT B
OPINION OF JORDAN RITTER, ESQ.
[date]
WELLS FARGO SECURITIES, LLC
RAYMOND JAMES & ASSOCIATES, INC.
as Representatives of the several Underwriters
Wells Fargo Securities, LLC
301 S. College Street
Charlotte, North Carolina 28288
Raymond James & Associates, Inc.
880 Carillon Parkway
St. Petersburg, Florida 33716
Ladies and Gentlemen:
References to the Prospectus in this Exhibit B include any supplements thereto at the Closing Date.
| 1. |
|
All of the issued and outstanding partnership interests of Essex Portfolio L.P. have been
duly authorized and issued in accordance with the partnership agreement. |
| |
| 2. |
|
To the best knowledge of such counsel, neither the Company nor any of its subsidiaries is in
violation of its charter or by laws or any law, administrative regulation or administrative or
court decree applicable to the Company or any of its subsidiaries or is in default in the
performance or observance of any obligation, agreement, covenant or condition contained in any
material existing instrument, except in each such case for such violations or defaults as
would not, individually or in the aggregate, result in a Material Adverse Change. |
| |
| 3. |
|
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 Pre-Pricing Prospectus or 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 except as would not, individually or in the aggregate, result in a
Material Adverse Change; 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 bylaws of such party or any material contract, lease or other
instrument to which such party is a party or by which its properties may be bound or any law,
administrative regulation or administrative or court order or decree, except for such breaches
or defaults as would not, individually or in the aggregate, result in a Material Adverse
Change. |
B-1
Capitalized terms used herein without definition shall have the respective meanings ascribed
to them in the Underwriting Agreement.
B-2
EXHIBIT C
OFFICERS’ CERTIFICATE
Each of the undersigned, [name of CEO], President and Chief Executive Officer of Essex
Property Trust, Inc., a Maryland corporation (the “Company”), and [name of CFO], Chief Financial
Officer of the Company, on behalf of the Company, does hereby certify pursuant to Section 6(h) of
that certain Underwriting Agreement dated April 8, 2011 (the “Underwriting Agreement”) between the
Company and, on behalf of the several Underwriters named therein, Wells Fargo Securities, LLC and
Raymond James & Associates, Inc., that as of [April [•], 2011]:
| 1. |
|
[“He” / “She” / “He or she”] has reviewed the Registration Statement, each Basic Prospectus,
the Pre-Pricing Prospectus, the Prospectus and each Permitted Free Writing Prospectus. |
| |
| 2. |
|
The representations and warranties of the Company as set forth in the Underwriting Agreement
are true and correct as of the date hereof and as if made on the date hereof. |
| |
| 3. |
|
The Company has performed all of its obligations under the Underwriting Agreement as are to
be performed at or before the date hereof. |
| |
| 4. |
|
The conditions set forth in paragraph (g) of Section 6 of the Underwriting Agreement have
been met. |
Capitalized terms used herein without definition shall have the respective meanings ascribed
to them in the Underwriting Agreement.
In Witness Whereof, the undersigned have hereunto set their hands on this [April [•], 2011].
| |
|
|
|
|
| |
Name: [name of CEO]
Title: President and Chief Executive Officer
|
|
| |
|
|
| |
|
|
| |
Name: [name of CFO]
Title: Chief Financial Officer
|
|
| |
|
|
| |
|
|
| |
|
|
| |
C-1
