Exhibit 1.1
APARTMENT INVESTMENT AND MANAGEMENT COMPANY
Shares of Class U Cumulative Preferred Stock
Underwriting Agreement
September 1, 2010
Morgan Stanley & Co. Incorporated
Wells Fargo Securities, LLC
As representatives of the several underwriters
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
c/o Wells Fargo Securities, LLC
301 S. College Street
Charlotte, NC 28288
Ladies and Gentlemen:
Apartment Investment and Management Company, a Maryland corporation (the “Company”), and AIMCO
Properties, L.P., a Delaware limited partnership (the “Operating Partnership”), of which the
Company’s wholly-owned subsidiary, AIMCO-GP, Inc., a Delaware corporation (the “OP General
Partner”), is the sole general partner, confirm their agreement with Morgan Stanley & Co.
Incorporated (“Morgan Stanley”) and Wells Fargo Securities, LLC (“Wells Fargo”), and each of the
other underwriters named in Schedule A hereto (collectively, the “Underwriters,” which term shall
also include any underwriter substituted as hereinafter provided in Section 7 hereof), for whom
Morgan Stanley and Wells Fargo are acting as representatives (in such capacity, the
“Representatives”), with respect to the issue and sale by the Company of 4,000,000 shares (the
“Securities”) of the Company’s Class U Cumulative Preferred Stock, par value $.01 per share (the
“Class U Preferred Stock”), and the purchase by the Underwriters, acting severally and not jointly,
of the respective number of shares of Class U Preferred Stock set forth opposite the names of the
Underwriters in Schedule A hereto. The Company previously issued and sold 8,000,000 shares of
Class U Preferred Stock (“Existing Class U Preferred Stock”), all of which Existing Class U
Preferred Stock are outstanding as of the date hereof. The Securities will have identical terms
and conditions, other than issue date, issue price, and the date from which dividends payable on
the Securities will begin to accumulate, as the Existing Class U Preferred Stock. The Securities
and the Existing Class U Preferred Stock will together constitute a single class of preferred stock
of the Company.
The Company understands that the Underwriters propose to make a public offering of the
Securities as soon as the Underwriters deem advisable after this underwriting agreement (the
“Agreement”) has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the “Commission”) an
automatic shelf registration statement on Form S-3 (File No. 333-150341-01), including a base
prospectus (the “Base Prospectus”), relating to certain securities, including the Class U Preferred
Stock, and which incorporates by reference documents that 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”). The Company has prepared and filed
a preliminary prospectus supplement to the Base Prospectus included as part of such registration
statement, dated as of August 31, 2010, which preliminary prospectus supplement specifically
relates to the Securities (the “Preliminary Prospectus Supplement”). Promptly after the execution
and delivery of this Agreement, the Company will prepare and file a prospectus supplement to the
Base Prospectus (the “Prospectus Supplement”). Except where the context otherwise requires, such
registration statement, as amended when it became effective, including all documents filed as part
thereof or incorporated by reference therein, and including any information contained in a
Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) or
deemed to be a part of such registration statement pursuant to Rule 430B (the “Rule 430B
Information”), is herein called the “Registration Statement.” The Registration Statement at the
time it originally became effective is herein called the “Original Registration Statement.” The
Base Prospectus, including all documents incorporated therein by reference, included in the
Registration Statement, as it may be supplemented by the Preliminary Prospectus Supplement, in the
form in which such Base Prospectus and Preliminary Prospectus Supplement have most recently been
filed by the Company with the Commission pursuant to Rule 424(b), is herein called the “Preliminary
Prospectus.” The Base Prospectus, including all documents incorporated therein by reference,
included in the Registration Statement, as it may be supplemented by the Prospectus Supplement, in
the form in which such Base Prospectus and Prospectus Supplement have most recently been filed by
the Company with the Commission pursuant to Rule 424(b), is herein called the “Prospectus.” Any
reference herein to the Registration Statement, the Disclosure Package (as defined below), the
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto shall be deemed to
refer to and include the documents incorporated by reference therein, and any reference herein to
the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the
Disclosure Package, the Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the filing after the execution hereof of any document with the Commission deemed to be
incorporated by reference therein. For purposes of this Agreement, all references to the
Registration Statement, the Preliminary Prospectus, the Prospectus Supplement or to any amendment
or supplement thereto shall be deemed to include any copy filed with the Commission pursuant to
EDGAR (as defined below).
The term “Disclosure Package” means (a) the Base Prospectus, the Preliminary Prospectus, as
most recently amended or supplemented immediately prior to the Applicable Time (as defined below),
(b) the Issuer Free Writing Prospectuses (as defined below), if any, identified in Schedule B
attached hereto and (c) any other Free Writing Prospectus (as defined below) that the parties
hereto shall hereafter expressly agree to treat as part of the Disclosure Package.
The term “Issuer Free Writing Prospectus” means any issuer free writing prospectus, as defined
in Rule 433, relating to an offering of the Securities (including any set forth on Schedule B
hereto) that (i) is required to be filed with the Commission by the Company, (ii) is a
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“road show that is a written communication” within the meaning of Rule 433(d)(8)(i), whether or not
required to be filed with the Commission, or (iii) is exempt from filing pursuant to Rule
433(d)(5)(i) because it contains a description of an offering of the Securities that does not
reflect the final terms, in each case, in the form filed or required to be filed with the
Commission or, if not required to be filed, in the form retained in the Company’s records pursuant
to Rule 433(g). The term “Free Writing Prospectus” means any free writing prospectus, as defined
in Rule 405. The term “Applicable Time” means 8:45 a.m. on September 1, 2010.
1. The Company represents and warrants to, and agrees with, each of the Underwriters as of the
date hereof, the Applicable Time and as of the Closing Time referred to in Section 2(a) hereof
that:
(a) (i) At the time of filing the Original Registration Statement, (ii) at the time of the
most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities
Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to
Section 13 or 15(d) of the Exchange Act or form of prospectus and (iii) at the date hereof, the
Company was, is and will be a “well-known seasoned issuer” as defined in Rule 405, including not
having been and not being an “ineligible issuer,” as defined in Rule 405. The Registration
Statement is an “automatic shelf registration statement,” as defined in Rule 405, and the
Securities, since their registration on the Registration Statement, have been and remain eligible
for registration by the Company on a Rule 405 “automatic shelf registration statement.” The
Company has not received from the Commission any notice pursuant to Rule 401(g)(2) objecting to the
use of the automatic shelf registration statement form. The Company has paid, or if the Prospectus
Supplement has not yet been filed with the Commission will pay, the required Commission filing fees
relating to the Securities within the time required by Rule 456(b)(1)(i) without regard to the
proviso therein and otherwise in accordance with Rule 456(b) and Rule 457(r) (including, if
applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule
456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover
page of the Prospectus Supplement).
(b) The Original Registration Statement became effective under Rule 462(e) upon receipt of
filing by the Commission on April 21, 2008, and any post-effective amendment thereto also became
effective upon filing under Rule 462(e). No stop order suspending the effectiveness of the
Registration Statement has been issued under the Securities Act and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the Company or the Operating
Partnership, are contemplated by the Commission, and any request on the part of the Commission for
additional information has been complied with.
Any offer that is a written communication relating to the Securities made prior to the filing
of the Original Registration Statement by the Company or any person acting on its behalf (within
the meaning, for this paragraph only, of Rule 163(c)) has been filed (unless exempt from filing
pursuant to Rule 163) with the Commission in accordance with the exemption provided by Rule 163 and
otherwise complied with the requirements of Rule 163, including without limitation the legending
requirement, to qualify such offer for the exemption from Section 5(c) of the Securities Act
provided by Rule 163.
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At the respective times the Original Registration Statement and any amendment thereto became
effective, at each deemed effective date with respect to the Underwriters and the Securities
pursuant to Rule 430B(f)(2), at the date hereof, at the Applicable Time and at the Closing Time,
the Registration Statement complied, complies and will comply in all material respects with the
requirements of the Securities Act, and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading.
The Prospectus and each amendment or supplement thereto, if any, at the time the Prospectus or
any such amendment or supplement is issued, or at the date hereof, at the Applicable Time and at
the Closing Time, complied, complies and will comply in all material respects with the requirements
of the Securities Act, and neither the Prospectus nor any amendments or supplements thereto, at the
time the Prospectus or any such amendment or supplement was issued, or at the date hereof, at the
Applicable Time or the Closing Time, included, includes or will include an untrue statement of a
material fact or omitted or will omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading.
The Preliminary Prospectus Supplement, as of its date, complied in all material respects with
the requirements of the Securities Act. Each Preliminary Prospectus and Prospectus delivered to
the Underwriters for use in connection with the offering of any Securities was identical to the
electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to
the extent permitted by Regulation S-T.
Each Issuer Free Writing Prospectus, as of its issue date and as of the date hereof, the
Applicable Time and the Closing Time, did not, does not and will not (i) include any information
that conflicted, conflicts or will conflict with the information contained in the Registration
Statement or the Prospectus or (ii) when taken together with the 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.
The representations and warranties in this Section 1(b) shall not apply to statements in or
omissions from the Registration Statement, the Preliminary Prospectus, the Prospectus or any Issuer
Free Writing Prospectus made in reliance upon and in conformity with written information furnished
to the Company by the Representatives expressly for use therein,
provided
that the parties hereby
agree that the only such information in the Preliminary Prospectus and the Prospectus is that set
forth in the fourth and eighth paragraphs and the first, fourth and fifth sentences of the twelfth
paragraph under the caption “Underwriting” in the Preliminary Prospectus and the Prospectus, and
the Representatives hereby consent to the use in the Preliminary Prospectus and the Prospectus of
such information.
(c) The documents incorporated or deemed to be incorporated by reference in the Registration
Statement, the Disclosure Package or the Prospectus (the “Incorporated Documents”), when they
became effective or at the time they were or hereafter are filed with the Commission, complied,
comply and will comply in all material respects with the requirements of the Exchange Act and, when
read together with the other information in the Registration
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Statement, the Disclosure Package or the Prospectus, (a) at the time the Original Registration
Statement became effective, (b) on the date of this Agreement, (c) at the Applicable Time and (d)
at the Closing Time, did not and will not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
(d) Except as otherwise disclosed in the Registration Statement, the Disclosure Package and
the Prospectus, subsequent to the respective dates as of which information is given in the
Registration Statement, the Disclosure Package or the Prospectus: (i) there has been no material
adverse change in the condition, financial or otherwise, or in the properties, earnings, business
or prospects of the Company, the Operating Partnership and the Subsidiaries (as defined below)
considered as one enterprise, whether or not arising in the ordinary course of business (a
“Material Adverse Effect”), (ii) there have been no transactions entered into by the Company, the
Operating Partnership or any Subsidiary, other than those in the ordinary course of business, which
are material with respect to the Company, the Operating Partnership and the Subsidiaries considered
as one enterprise and (iii) except for regular quarterly dividends on the Company’s Class A Common
Stock, par value $.01 per share (the “Common Stock”), in amounts per share that are consistent with
past practice, regular quarterly dividends on the Company’s outstanding preferred stock and regular
quarterly distributions on the Operating Partnership’s common OP units, partnership preferred units
and high performance partnership units of limited partnership, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class of its capital shares
or any distribution by the Operating Partnership with respect to any of its limited partnership
interests.
(e) The Company has been duly incorporated and is validly existing as a corporation and is in
good standing under the laws of the State of Maryland, with full corporate power and authority to
own and lease its properties and to conduct its business as described in the Registration
Statement, the Disclosure Package and the Prospectus and to enter into and perform its obligations
under this Agreement. The Company is duly qualified or registered as a foreign corporation to
transact business and is in good standing in each other jurisdiction in which such qualification or
registration is required, whether by reason of the ownership or leasing of property or the conduct
of business, except where the failure so to qualify or to be in good standing would not,
individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
(f) The Operating Partnership has been duly formed and is validly existing as a limited
partnership and is in good standing under the laws of the State of Delaware and has the partnership
power and partnership authority under the Operating Partnership Agreement (as defined below) and
the Delaware Revised Uniform Limited Partnership Act to own, lease and operate its properties and
to conduct the business in which it is engaged as described in the Registration Statement, the
Disclosure Package and the Prospectus and to enter into and perform its obligations under this
Agreement. The Operating Partnership is duly qualified or registered as a foreign partnership to
transact business and is in good standing in each jurisdiction in which such qualification or
registration is required, whether by reason of the ownership or leasing of property or the conduct
of business, except where the failure to so qualify or register would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect. The OP General Partner
is the sole general partner of the Operating Partnership and holds such
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number and/or percentage of common OP units, partnership preferred units and high performance
partnership units of limited partnership interest as disclosed in the Registration Statement and
the Prospectus as of the dates set forth therein, free and clear of any perfected security interest
or any other security interests, claims, liens or encumbrances. The Fourth Amended and Restated
Agreement of Limited Partnership of the Operating Partnership, dated as of July 29, 1994 and
restated as of February 28, 2007, as amended by the First Amendment thereto, dated as of December
31, 2007, and the Second Amendment thereto, dated as of dated as of July 30, 2009 (collectively,
the “Operating Partnership Agreement”), is in full force and effect.
(g) The only Subsidiaries of the Company that may constitute a “significant subsidiary” within
the meaning of Rule 1-02(w) of Regulation S-X are the Subsidiaries listed on Exhibit 21.1 to the
Company’s Annual Report on Form 10-K for the year ended December 31, 2009. Each of the
Subsidiaries of the Company or the Operating Partnership has been duly incorporated or organized
and is validly existing as a corporation, limited partnership, limited liability limited
partnership, general partnership or limited liability company, as applicable, in good standing
under the laws of the jurisdiction in which it is chartered or organized 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 Disclosure Package and the Prospectus, and is duly
qualified or registered as a foreign corporation, limited partnership, limited liability limited
partnership, general partnership or limited liability company, as applicable, and is in good
standing in the jurisdiction in which such qualification or registration is required, whether by
reason of the ownership or leasing of property or the conduct of business, except in each case
where the failure to so qualify or register would not, individually or in the aggregate, reasonably
be expected to result in a Material Adverse Effect. All the outstanding shares of capital stock,
partnership interests, limited liability company interests or other equivalent equity interests of
each such Subsidiary have been duly authorized and validly issued and are fully paid and
non-assessable, and, except (i) as otherwise set forth in each of the Registration Statement and
the Prospectus and (ii) the shares of capital stock, partnership interests, limited liability
company interests or other equivalent equity interests of Subsidiaries that are pledged under (x)
that certain Security Agreement, dated as of November 2, 2004, pursuant to which the Company, the
Operating Partnership and AIMCO/Bethesda Holdings, Inc. (collectively, the “Borrowers”) granted a
security interest in, and pledged, certain collateral to Bank of America, N.A., as administrative
agent (in such capacity, the “Administrative Agent”) for the lenders under the Amended and Restated
Senior Secured Credit Agreement, dated as of November 2, 2004, among the Borrowers, the financial
institutions from time to time party thereto and the Administrative Agent (as amended, amended and
restated, supplemented or otherwise modified, the “Credit Agreement”), and (y) that certain
Security Agreement, dated as of November 2, 2004 and amended on August 28, 2008 and May 1, 2009,
pursuant to which certain subsidiaries of the Borrowers granted a security interest in, and
pledged, certain collateral to the Administrative Agent, all outstanding shares of capital stock,
partnership interests, limited liability company interests or other equivalent equity interest of
the Subsidiaries are owned by the Company or the Operating Partnership, as applicable, either
directly or through Subsidiaries free and clear of any perfected security interest or any other
security interests, mortgages, pledges, liens, encumbrances, claims in law or in equity, and none
of the outstanding shares of capital stock, partnership interests, limited liability company
interests or other equivalent equity interests of the Subsidiaries were issued in violation of the
preemptive or similar rights of any security of each
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Subsidiary, except such violations as would not, individually or in the aggregate, reasonably
be expected to result in a Material Adverse Effect.
(h) This Agreement and the transactions contemplated herein have been duly authorized by the
Company and the Operating Partnership, and this Agreement has been duly executed and delivered by
the Company and the Operating Partnership.
(i) The Company has an authorized capitalization as set forth in the Disclosure Package and
the Prospectus. All of the issued and outstanding shares of capital stock of the Company have been
duly authorized and validly issued by the Company and are fully paid and non-assessable, and none
of the outstanding shares of capital stock of the Company were issued in violation of preemptive or
other similar rights of any security holder of the Company.
(j) The Securities have been duly authorized and reserved for issuance, sale and delivery
pursuant to this Agreement and, when issued and delivered by the Company pursuant to this Agreement
against payment of the consideration provided for herein, will be validly issued, fully paid and
non-assessable. The Securities conform in all material respects to all statements relating thereto
contained in the Registration Statement, the Disclosure Package and the Prospectus. No holder of
the Securities will be subject to personal liability by reason of being such a holder. The
issuance of the Securities is not subject to the preemptive or other similar rights of any security
holder of the Company. The form of certificate used to evidence the Securities will be in
substantially the form to be filed or incorporated by reference, as the case may be, as an exhibit
to the Registration Statement, and such form complies with all applicable statutory requirements,
requirements of the Company’s Charter, as restated in the Articles of Restatement dated April 21,
1999, as amended, the Amended and Restated Bylaws of the Company (the “Bylaws”), and requirements
of the NYSE.
(k) None of the Company, the Operating Partnership or any Significant Subsidiary is (i) in
violation of its charter, partnership agreement, by-laws or other governing instrument (“Governing
Instruments”) or (ii) in default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the Company, the Operating
Partnership or any Significant Subsidiary 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, the Operating Partnership or any Significant
Subsidiary is subject (collectively, “Agreements and Instruments”), except for such defaults that
would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse
Effect or (iii) in violation of any applicable law, statute, rule, regulation, judgment, order,
writ or decree of any government, government instrumentality or court, domestic or foreign, having
jurisdiction over the Company, the Operating Partnership or any Significant Subsidiary or any of
their assets, properties or operations (“Laws”), except for such violations that would not,
individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
The execution, delivery and performance of this Agreement and the consummation of the transactions
contemplated herein and in the Disclosure Package and the Prospectus (including the issuance and
sale of the Securities and the use of the aggregate Net Proceeds from the sale of the Securities as
described in the Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and
compliance by the Company and the Operating Partnership with their respective obligations hereunder
have been duly authorized by
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all necessary corporate or limited partnership action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with or constitute a breach of,
or default or Repayment Event (as defined below) under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company, the Operating
Partnership or any Subsidiary pursuant to, the Agreements and Instruments (except for such
conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not,
individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect),
nor will such action result in any violation of the provisions of the Governing Instruments of the
Company, the Operating Partnership or any Significant Subsidiary or, except as would not,
individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, of
any Laws. As used herein, a “Repayment Event” means any event or condition which gives the holder
of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s
behalf) the right to require the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company, the Operating Partnership or any Significant Subsidiary.
(l) No filing with, or authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency is necessary or required
for the performance by the Company or the Operating Partnership of their respective obligations
hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the
consummation of the transactions contemplated by this Agreement, except such as have already been
obtained or will be obtained under the Securities Act or under state securities laws or the rules
of FINRA.
(m) There is no action, arbitration, suit, proceeding, inquiry or investigation before or
brought by any arbitrator or court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company or the Operating Partnership, threatened, against or
affecting the Company, the Operating Partnership or any Subsidiary, which is required to be
disclosed in the Registration Statement, the Disclosure Package or the Prospectus (other than as
disclosed therein), or which might reasonably be expected to result in a Material Adverse Effect or
which might reasonably be expected to materially and adversely affect the consummation of the
transactions contemplated in this Agreement or the performance by the Company or the Operating
Partnership of their respective obligations hereunder.
(n) The financial statements of the Company and its consolidated Subsidiaries set forth in or
incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus,
together with the related schedules and notes, present fairly the financial position, results of
operations and cash flows of the Company and its consolidated Subsidiaries at the dates and for the
periods specified, and, except as disclosed in the notes thereto, such financial statements have
been prepared in conformity with U.S. generally accepted accounting principles (“GAAP”) applied on
a consistent basis throughout the periods involved. The supporting schedules, if any, set forth in
or incorporated by reference in the Registration Statement, the Disclosure Package or the
Prospectus present fairly in accordance with GAAP the information required to be stated therein.
Any selected historical operating and financial data set forth in or incorporated by reference in
the Registration Statement, the Disclosure Package or the Prospectus present fairly in all material
respects the information shown therein and have been compiled on a basis consistent with the books
and records of the Company and that of the
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audited financial statements set forth in or incorporated by reference in the Registration
Statement or the Prospectus. The financial statements of the businesses or properties acquired or
proposed to be acquired, if any, included in, or incorporated by reference into, the Registration
Statement, the Disclosure Package or the Prospectus present fairly in all material respects the
information set forth therein, have been prepared in conformity with GAAP applied on a consistent
basis and otherwise have been prepared in accordance with the applicable financial statement
requirements of Rule 3-05 or Rule 3-14 of Regulation S-X with respect to real estate operations
acquired or to be acquired. In addition, any pro forma financial statements and the related notes
thereto set forth in or incorporated by reference in the Registration Statement, the Disclosure
Package or the Prospectus present fairly in all material respects the information shown therein,
have been prepared in accordance with the Commission’s rules and guidelines with respect to pro
forma financial statements and have been properly compiled on the basis described therein, and the
assumptions used in the preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances referred to therein; other than as
set forth therein, the Company is not required to include any financial statements or pro forma
financial statements in the Registration Statement, the Disclosure Package or the Prospectus under
the Securities Act or any document required to be filed with the Commission under the Exchange Act.
All disclosures contained in the Registration Statement, the Disclosure Package or the Prospectus
regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of
the Commission) comply with Regulation G and Item 10 of Regulation S-K, to the extent applicable.
(o) The Company, the Operating Partnership, the Subsidiaries and, to the knowledge of the
Company, any joint venture that is not a Subsidiary, in which the Company, the Operating
Partnership or any Subsidiary owns an interest, as the case may be, have good and marketable title
to all real property owned by them, and good title to all other properties owned by them, in each
case, free and clear of all mortgages, pledges, liens, security interests, claims, restrictions or
encumbrances of any kind, except (i) such mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances in connection with mortgages entered into in the ordinary course
consistent with past practice, (ii) as otherwise stated in the Registration Statement, the
Disclosure Package and the Prospectus or (iii) those which would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect. Each of the properties
of any of the Company, the Operating Partnership or the Subsidiaries complies with all applicable
codes and zoning laws and regulations except in any case where such non-compliance would not,
individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect;
and none of the Company, the Operating Partnership or any Subsidiary 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, the Operating Partnership or any Subsidiary except in any case where such action or
proceeding would not, individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect. All of the leases and subleases material to the business of the Company,
the Operating Partnership and the Subsidiaries considered as one enterprise, and under which the
Company, the Operating Partnership or any Subsidiary holds properties described in the Registration
Statement and the Prospectus, are in full force and effect, and none of the Company, the Operating
Partnership or any Subsidiary has any notice of any material claim of any sort that has been
asserted by anyone adverse to the rights of the Company, the Operating Partnership or any
Subsidiary under any of the leases or subleases mentioned
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above, or affecting or questioning the rights of the Company, the Operating Partnership or any
Subsidiary of the continued possession of the leased or subleased premises under any such lease or
sublease, except as would not, individually or in the aggregate, reasonably be expected to result
in a Material Adverse Effect. To the knowledge of the Company, except as described in the
Registration Statement, the Disclosure Package and the Prospectus, no tenant under any lease to
which the Company, the Operating Partnership or any Subsidiary leases any portion of its property
is in default under such lease, except for any defaults that would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect.
(p) Title insurance in favor of the Company, the Operating Partnership and the Subsidiaries
has been obtained with respect to each property owned by any such entity in an amount that is
customary for companies engaged in the same or similar businesses, except where the failure to
maintain such title insurance would not reasonably be expected to result in a Material Adverse
Effect.
(q) The mortgages and deeds of trust encumbering the properties and assets described in the
Registration Statement, the Disclosure Package and the Prospectus (i) are not convertible (in the
absence of foreclosure) into an equity interest in the property or asset described therein or in
the Company, the Operating Partnership or any Subsidiary, nor does any of the Company, the
Operating Partnership or any Subsidiary hold a participating interest therein, (ii) except as set
forth in the Registration Statement, the Disclosure Package and the Prospectus, are not
cross-defaulted to any indebtedness other than indebtedness of the Company or any of the
Subsidiaries and (iii) are not cross-collateralized to any property not owned by the Company, the
Operating Partnership or any of the Subsidiaries, except, in each case, as would not, individually
or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
(r) To the knowledge of the Company and the Operating Partnership, the real property of the
Company, the Operating Partnership and the Subsidiaries is free of material structural defects and
all building systems contained therein are in reasonably good working order in all material
respects, subject to ordinary wear and tear or, strategic business decisions regarding maintenance
thereof.
(s) All U.S. federal income tax returns of the Company, the Operating Partnership and the
Subsidiaries required by Law to be filed have been filed and all taxes shown by such returns, which
are due and payable, have been paid. No assessment in respect of U.S. federal income taxes has
been made to date against the Company, the Operating Partnership or any of the Subsidiaries that
would reasonably be expected to result in a Material Adverse Effect. The Company, the Operating
Partnership and the Subsidiaries have filed all other tax returns that are required to have been
filed by them pursuant to applicable foreign, state, local or other law except insofar as the
failure to file such returns would not, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect, and have paid all taxes due pursuant to such returns or
pursuant to any assessment received by the Company, the Operating Partnership and the Subsidiaries,
except for such taxes, if any, as are being contested in good faith or would not, individually or
in the aggregate, reasonably be expected to result in a Material Adverse Effect. The charges,
accruals and reserves on the books of the Company, the Operating Partnership and the Subsidiaries
in respect of any income, partnership and corporation tax liability for any years not finally
determined are adequate to meet any assessments or
10
re-assessments for additional income tax for any years not finally determined, except to the
extent of any inadequacy that would not, individually or in the aggregate, reasonably be expected
to result in a Material Adverse Effect.
(t) Commencing with its taxable year ended December 31, 1994, the Company has been organized
and operated in conformity with the requirements for qualification and taxation as a real estate
investment trust (a “REIT”) under the Internal Revenue Code of 1986, as amended (the “Code”), and
the Company’s actual and proposed method of operation as described in the Registration Statement,
the Disclosure Package and the Prospectus will enable it to continue to meet the requirements for
qualification and taxation as a REIT under the Code. The Operating Partnership will be taxed as a
partnership for federal income tax purposes.
(u) Neither the Company nor the Operating Partnership is, or upon the issuance and sale of the
Securities and the application of the Net Proceeds therefrom as described in the Disclosure Package
and the Prospectus will be, an “investment company” as such term is defined in the Investment
Company Act.
(v) The accounting firm that certified the financial statements and supporting schedules
incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus
is an independent registered public accounting firm as required by the Securities Act, the Exchange
Act and the Public Company Accounting Oversight Board (United States) (“PCAOB”).
(w) Except as described in the Registration Statement, the Disclosure Package and the
Prospectus or except as would not, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect, (i) none of the Company, the Operating Partnership or any of
the Subsidiaries is in violation of any federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or
wildlife, including, without limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products, asbestos-containing materials or mold (collectively, “Hazardous
Materials”) or to the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively, “Environmental Laws”), (ii) the
Company, the Operating Partnership and the Subsidiaries have all permits, authorizations and
approvals required under any applicable Environmental Laws and are each in compliance with their
requirements, (iii) there are no pending or, to the knowledge of the Company, threatened
administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violations, investigations or proceedings relating to any Environmental
Law against the Company, the Operating Partnership or any of the Subsidiaries and (iv) there are no
events or circumstances that would reasonably be expected to form the basis of an order for
clean-up or remediation, or an action, suit or proceeding by any private party or governmental body
or agency, against or affecting the Company, the Operating Partnership or any of the Subsidiaries
relating to Hazardous Materials or any Environmental Laws.
11
(x) The Company, the Operating Partnership and the Subsidiaries carry or are entitled to the
benefits of insurance in such amounts and covering such risks as is customary for companies engaged
in the same or similar business, and all such insurance is in full force and effect. None of the
Company, the Operating Partnership or any Subsidiary has any reason to believe that it 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 reasonably be expected to result in a
Material Adverse Effect.
(y) Each of the Company, the Operating Partnership and the Subsidiaries possesses such
permits, licenses, approvals, consents and other authorizations (collectively, “Governmental
Licenses”) issued by the appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them, except where failure to possess any such
Governmental Licenses would not, individually or in the aggregate, reasonably be expected to result
in a Material Adverse Effect; the Company, the Operating Partnership and the Subsidiaries are in
compliance with the terms and conditions of all such Governmental Licenses, except where the
failure so to comply would not, individually or in the aggregate, reasonably be expected to result
in a Material Adverse Effect; all of the Governmental Licenses are valid and in full force and
effect, except when the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not, individually or in the aggregate,
result in a Material Adverse Effect; and none of the Company, the Operating Partnership or any of
the Subsidiaries has received any notice of proceedings relating to the revocation or modification
of any such Governmental Licenses which if the subject of an unfavorable decision, ruling or
finding, would, individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect.
(z) No labor dispute with the employees of the Company, the Operating Partnership or any
Subsidiary exists or, to the knowledge of the Company or the Operating Partnership, is imminent,
which would, individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect.
(aa) There are no contracts or documents which are required to be described in the
Registration Statement, the Disclosure Package or the Prospectus or the documents incorporated by
reference therein or to be filed as exhibits thereto which have not been so described and filed as
required.
(bb) The Company, the Operating Partnership and the Subsidiaries own or possess, or can
acquire on reasonable terms, adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service marks, trade names or other
intellectual property (collectively, “Intellectual Property”) necessary to carry on the business
now operated by them, and none of the Company, the Operating Partnership or any Subsidiary has
received any written notice or is otherwise aware of any infringement of or conflict with asserted
rights of others with respect to any Intellectual Property or of any facts or circumstances which
would render any Intellectual Property invalid or inadequate to protect the interest of the
Company, the Operating Partnership or any Subsidiary therein, and which infringement or conflict
(if the subject of any unfavorable decision, ruling or finding) or
12
invalidity or inadequacy, individually or in the aggregate, would reasonably be expected to
result in a Material Adverse Effect.
(cc) The Company, the Operating Partnership and the Subsidiaries maintain a system of internal
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 GAAP 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
the existing assets at reasonable intervals and appropriate action is taken with respect to any
differences. Except as described in the Disclosure Package and the Prospectus, since the end of
the Company’s most recent audited fiscal year, there has been (1) no material weakness in the
Company’s internal control over financial reporting (whether or not remediated) and (2) no change
in the Company’s internal control over financial reporting that has materially affected, or is
reasonably likely to materially affect, the Company’s internal control over financial reporting.
The Company, the Operating Partnership and the Subsidiaries employ disclosure controls and
procedures that are designed to ensure that information required to be disclosed by the Company in
the reports that it files or submits under the Exchange Act is recorded, processed, summarized and
reported, within the time periods specified in the Commission’s rules and forms, and is accumulated
and communicated to the Company’s management, including its principal executive officer or officers
and principal financial officer or officers, as appropriate, to allow timely decisions regarding
disclosure.
(dd) None of the Company, the Operating Partnership or any Significant Subsidiary, nor, to the
knowledge of the Company or the Operating Partnership, any director, officer, agent, employee,
affiliate or other person acting on behalf of the Company or any Significant Subsidiary is aware of
or has taken any action, directly or indirectly, that would reasonably be expected to result in a
violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules
and regulations thereunder (the “FCPA”), including, without limitation, making use of the mails or
any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment,
promise to pay or authorization of the payment of any money, or other property, gift, promise to
give, or authorization of the giving of anything of value to any “foreign official” (as such term
is defined in the FCPA) or any foreign political party or official thereof or any candidate for
foreign political office, in contravention of the FCPA, and the Company, the Operating Partnership,
any Significant Subsidiary and, to the knowledge of the Company or the Operating Partnership, the
Company’s affiliates have conducted their businesses in compliance with the FCPA and have
instituted and maintain policies and procedures designed to ensure, and which are reasonably
expected to continue to ensure, continued compliance therewith.
(ee) The operations of the Company, the Operating Partnership and each Significant Subsidiary
are and have been conducted at all times in compliance with applicable financial recordkeeping and
reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended,
the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder
and any related or similar applicable rules, regulations or guidelines, issued, administered or
enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit
or proceeding by or before any court or governmental
13
agency, authority or body or any arbitrator involving the Company, the Operating Partnership,
or any Significant Subsidiary with respect to the Money Laundering Laws is pending or, to the
knowledge of the Company or the Operating Partnership, threatened.
(ff) None of the Company, the Operating Partnership, any Significant Subsidiary or, to the
knowledge of the Company or the Operating Partnership, any director, officer, agent, employee,
affiliate or person acting on behalf of the Company, the Operating Partnership or any Significant
Subsidiary is currently subject to any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Treasury Department (“OFAC”); and the Company, the Operating Partnership or any
Significant Subsidiary will not directly or indirectly use the proceeds of the offering, or lend,
contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or
other person or entity, for the purpose of financing the activities of any person currently subject
to any U.S. sanctions administered by OFAC.
(gg) There is and has been no failure on the part of the Company, the Operating Partnership or
any Subsidiary or any of the directors or officers of the Company, the Operating Partnership or any
Subsidiary, in their capacities as such, to comply in all material respects with any provision of
the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith
(the “Sarbanes-Oxley Act”), including Section 402 related to loans and Sections 302 and 906 related
to certifications.
(hh) Except as described in the Registration Statement, the Disclosure Package and the
Prospectus, no holders of securities or other equity interests of the Company or the Operating
Partnership have rights to have any such securities registered pursuant to the Registration
Statement or in connection with the transactions contemplated by this Agreement.
(ii) Any statistical and market-related data included in the Registration Statement, the
Disclosure Package and the Prospectus are based on or derived from sources that the Company
believes to be reliable and accurate in all material respects, and the Company has obtained the
written consent to the use of such data from such sources, where required.
(jj) The outstanding shares of Class U Preferred Stock and the Securities to be sold by the
Company hereunder have been or will have been approved for listing, subject only to official notice
of issuance, on the NYSE, and are registered pursuant to Section 12(b) of the Exchange Act, and the
Company has taken no action designed to, or likely to have the effect of, terminating the
registration of the Securities under the Exchange Act or delisting any such securities from the
NYSE, nor has the Company received any notification that the Commission or the NYSE is
contemplating terminating such registration or listing.
(kk) Except as described in the Disclosure Package and the Prospectus, none of the Company,
the Operating Partnership or any Subsidiary is a party to any contract, agreement or understanding
with any person (other than as contemplated by this Agreement) that would give rise to a valid
claim against the Company, the Operating Partnership or any Subsidiary or any Underwriter for a
brokerage commission, finder’s fee or like payment in connection with the offering and sale of the
Securities.
14
(ll) Any certificate signed by any officer of the Company or the Operating Partnership
delivered to the Underwriters or to counsel for the Underwriters pursuant to or in connection with
this Agreement shall be deemed a representation and warranty by the Company or the Operating
Partnership, as applicable, to the Underwriters as to the matters covered thereby as of the date or
dates indicated in such certificate.
2.
(a) On the basis of the representations, warranties and agreements herein contained and
subject to the terms and conditions herein set forth, at the purchase price per share of $24.0865,
the Company agrees to sell to the Underwriters the Securities, and each Underwriter agrees,
severally and not jointly, to purchase from the Company the number of Securities set forth in
Schedule A opposite such Underwriter’s name, plus any additional number of Securities that such
Underwriter may become obligated to purchase pursuant to the provisions of Section 7 hereof,
subject in each case, to such adjustments among the Underwriters as the Representatives in their
sole discretion shall make to eliminate any sales or purchases of fractional shares.
(b) The Securities to be purchased by each Underwriter hereunder, in definitive form, and
in such authorized denominations and registered in such names as the Representatives may request
upon at least 48 hours’ prior notice to the Company shall be delivered by or on behalf of the
Company to the Representatives, including, at the option of the Representatives, through the
facilities of The Depository Trust Company (“DTC”) for the account of such Underwriter, against
payment by or on behalf of such Underwriter of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified in writing to the Representatives by the Company
upon at least 48 hours’ prior notice. Upon request of the Representatives, the Company will cause
the certificates representing the Securities to be made available for checking and packaging at
least 24 hours prior to the Closing Time with respect thereto at the office of Wells Fargo
Securities, LLC, 301 S. College Street, 6
th
Floor, Charlotte, NC 28288, or at the office
of DTC or its designated custodian, as the case may be (the “Designated Office”). The time and
date of such delivery and payment shall be 9:30 a.m., New York City time, on the third (fourth, if
pricing occurs after 4:00 p.m., New York City time) business day after the date hereof (unless
another time and date shall be agreed to by the Representatives and the Company). The time at
which such payment and delivery are actually made is hereinafter sometimes called the “Closing
Time.”
3. The Company and the Operating Partnership agree with each of the Underwriters:
(a) As promptly as practicable following execution and delivery of this Agreement, to prepare
the Prospectus relating to the Securities in a form approved by the Representatives and to file
such Prospectus pursuant to Rule 424(b) not later than the Commission’s close of business on the
second business day following the execution and delivery of this Agreement or, if applicable, such
earlier time as may be required by Rule 424(b) (without reliance on Rule 424(b)(8)); to make no
further amendment or any supplement to the Registration Statement, the General Disclosure Package,
or Prospectus after the date of this Agreement and prior to the Closing Time which shall be
disapproved by the Representatives promptly after reasonable notice thereof; to advise the
Representatives promptly of any such amendment or supplement and furnish the Representatives with
copies thereof and to file promptly all reports and any
15
definitive proxy or information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection with the offering or sale of the Securities, and
during such same period to advise the Representatives, promptly after it receives notice thereof,
of the time when any amendment to the Registration Statement has been filed or becomes effective or
any supplement to the Prospectus or any amended Prospectus has been filed with the Commission, of
the issuance by the Commission of any stop order or of any order preventing or suspending the use
of any prospectus relating to the Securities, of any notice of objection of the Commission to the
use of the form of the Registration Statement or any amendment thereto pursuant to Rule 401(g)(2),
of the suspension of the qualification of the Securities for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any such stop order or of any such
order preventing or suspending the use of any prospectus relating to the Securities or suspending
any such qualification, or of the issuance of any such notice of objection, to promptly use every
commercially reasonable effort to permit offers and sales of the Securities by the Underwriters,
which effort may include, without limitation, obtaining the withdrawal of such order or notice,
amending the Registration Statement or filing a new registration statement, at the Company’s
expense (references herein to the Registration Statement shall include any such amendment or new
registration statement);
(b) Promptly from time to time to take such action as the Representatives may reasonably
request to qualify the Securities for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Securities,
provided
that the Company shall not be obligated to
file any general consent to service of process or to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject;
(c) The Company represents and agrees that, unless it obtains the prior written consent of the
Representatives, and each Underwriter represents and agrees that, unless it obtains the prior
written consent of the Company and the Representatives, it has not made and will not make any offer
relating to the Securities that would constitute an “issuer free writing prospectus,” as defined in
Rule 433, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405,
in each case required to be filed with the Commission. Any such free writing prospectus consented
to by the Company and the Underwriters is hereinafter referred to as a “Permitted Free Writing
Prospectus.” The Company represents that it has treated or agrees that it will treat each
Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433,
and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free
Writing Prospectus, including timely filing with the Commission where required, legending and
record keeping;
(d) Prior to 10:00 a.m. New York City time, on the New York second business day next
succeeding the date hereof and from time to time during the period when the delivery of a
prospectus is required (whether physically or through compliance with Rule 153 or Rule 172, or in
lieu thereof, a notice referred to in Rule 173(a)) in connection with the offering or sale of the
16
Securities, the Company will furnish the Underwriters with copies of the Prospectus in New
York City as amended or supplemented in such quantities as the Representatives may reasonably
request, and, if the delivery of a prospectus is required at any time in connection with the
offering or sale of the Securities and if at such time any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document incorporated by reference
in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the
Representatives and upon their request to file such document and to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many written and electronic copies as
the Representatives may from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or omission or effect such
compliance;
(e) To timely file such reports pursuant to the Exchange Act as are necessary in order to make
generally available to its security holders as soon as practicable an earnings statement for the
purposes of, and to provide to the Underwriters the benefits contemplated by, the last paragraph of
Section 11(a) of the Securities Act;
(f) To use the net proceeds received by it from the sale of the Securities in the manner
specified in the Prospectus under the caption “Use of Proceeds;”
(g) To use commercially reasonable efforts to effect the listing of the Securities on the
NYSE;
(h) To engage and maintain, at their expense, a registrar and transfer agent for the
Securities;
(i) From the date of this Agreement through, and including, the 30th day after the Closing
Time, not to offer, sell, contract to sell or otherwise dispose of, except as provided hereunder,
any preferred securities of the Company that are substantially similar to the Securities, including
but not limited to the Existing Class U Preferred Stock or any securities that are convertible into
or exchangeable for, or that represent the right to receive, any such substantially similar
securities, without the prior written consent of the Representatives, other than the Securities;
(j) The Company intends to operate in conformity with the requirements for qualification as a
“real estate investment trust” under the Code for each of its taxable years for so long as the
Board of Directors of the Company deems it in the best interests of the Company’s security holders
to remain so qualified;
(k) To pay the required Commission filing fees relating to the Securities within the time
required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with
Rule 456(b) and Rule 457(r);
17
(l) To not, directly or indirectly, during the “restricted period,” as defined with respect to
the Company in Rule 100 of Regulation M, (i) take any action designed to cause or result in, or
that constitutes or might reasonably be expected to constitute, the stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale of the Securities or
(ii) sell, bid for, or purchase the Securities to be issued and sold pursuant to this Agreement, or
pay anyone any compensation for soliciting purchases of the Securities to be issued and sold
pursuant to this Agreement other than Underwriters;
provided
that the Company may bid for and
purchase its Common Stock in accordance with Rule 10b-18 under the Exchange Act;
(m) If immediately prior to the third anniversary (the “Renewal Deadline”) of the initial
effective date of the Registration Statement, any of the Securities remain unsold, the Company
will, prior to the Renewal Deadline file, if it has not already done so and is eligible to do so, a
new automatic shelf registration statement relating to the Securities. If the Company is no longer
eligible to file an automatic shelf registration statement, the Company will, prior to the Renewal
Deadline, if it has not already done so, file a new shelf registration statement relating to the
Securities, and will use its best efforts to cause such registration statement to be declared
effective within 180 days after the Renewal Deadline. The Company will take all other action
necessary or appropriate to permit the issuance and sale of the Securities to continue as
contemplated in the expired registration statement relating to the Securities. References herein
to the Registration Statement shall include such new automatic shelf registration statement or such
new shelf registration statement, as the case may be; and
(n) The Company and the Operating Partnership acknowledge and agree that the Underwriters are
acting solely in the capacity of an arm’s length contractual counterparty to the Company and the
Operating Partnership with respect to the offering of the Securities (including in connection with
determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an
agent of, the Company, the Operating Partnership or any other person. Additionally, no Underwriter
is advising the Company, the Operating Partnership or any other person as to any legal, tax,
investment, accounting or regulatory matters in any jurisdiction. The Company and the Operating
Partnership shall consult with their own advisors concerning such matters and shall be responsible
for making its own independent investigation and appraisal of the transactions contemplated hereby,
and the Underwriters shall have no responsibility or liability to the Company or the Operating
Partnership with respect thereto. Any review by the Underwriters of the Company, the Operating
Partnership, the transactions contemplated hereby or other matters relating to such transactions
will be performed solely for the benefit of the Underwriters and shall not be on behalf of the
Company or the Operating Partnership.
4. The Company covenants and agrees with the several Underwriters that the Company will pay or
cause to be paid the following: (i) the fees, disbursements and expenses of the Company’s counsel
and accountants in connection with the registration of the Securities under the Securities Act and
all other expenses in connection with the preparation, printing and filing of the Registration
Statement, the Preliminary Prospectus, any Permitted Free Writing Prospectus, and the Prospectus
and amendments and supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) all expenses in connection with the qualification of the Securities
for offering and sale under state securities laws as provided in Section 3(b) hereof, including the
fees and disbursements of counsel for the Underwriters in
18
connection with such qualification and in connection with the Blue Sky or state securities law
surveys; (iii) any fees charged by securities rating services for rating the Securities; (iv) any
filing fees incident to any required review by FINRA of the terms of the sale of the Securities;
(v) all other costs and expenses incident to the performance of its obligations hereunder which are
not otherwise specifically provided for in this Section; and (vi) the costs and expenses (including
without limitation any damages or other amounts payable in connection with legal or contractual
liability) associated with the reforming of any contracts for sale of the Securities made by the
Underwriters caused by a breach of the representation contained in Section 1(b) hereof. It is
understood, however, that, except as provided in this Section and Sections 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Securities by them, and any advertising expenses connected
with any offers they may make.
5. The obligations of the Underwriters under this Agreement shall be subject, in the
discretion of the Representatives, to the condition that all representations and warranties and
other statements of the Company in this Agreement are, at and as of the Applicable Time and the
applicable Closing Time, true and correct, to the condition that the Company shall have performed
all of its obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The Prospectus containing the 430B Information as amended or supplemented in relation to
the Securities shall have been filed with the Commission in the manner and within the time period
required by Rule 424(b) without reliance on Rule 424(b)(8) and in accordance with Section 3(a)
hereof; no stop order suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission and no notice of objection of the Commission to the use of the form of
the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) shall
have been received; no stop order suspending or preventing the use of the Preliminary Prospectus,
the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the Commission; all material required to be
filed by the Company, with respect to the offering of the Securities, pursuant to Rule 433(d) shall
have been filed with the Commission within the applicable time periods prescribed for such filings
under Rule 433; and all requests for additional information on the part of the Commission shall
have been complied with to the Representatives’ reasonable satisfaction;
(b) Jones Day, counsel for the Underwriters, shall have furnished to the Representatives such
opinion or opinions, dated the applicable Closing Time as the Representatives may reasonably
request;
(c) Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Company, shall have furnished to
the Representatives their written opinions, dated the applicable Closing Time, substantially
similar to the form attached hereto as Exhibit A;
(d) DLA Piper LLP (US), counsel for the Company, shall have furnished to the Representatives
their written opinion, dated the applicable Closing Time, substantially similar to the form
attached hereto as Exhibit B;
19
(e) At the time of the execution of this Agreement, the Representatives shall have received
from Ernst & Young, LLP a letter dated such date, in form and substance reasonably satisfactory to
the Representatives, together with signed or reproduced copies of such letter for each of the other
Underwriters containing statements and information of the type ordinarily included in accountants’
“comfort letters” to Underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement, the General Disclosure Package and the
Prospectus;
(f) At the applicable Closing Time, the Representatives shall have received from Ernst &
Young, LLP a letter, dated as of the applicable Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to sub-section (e) of this Section, together with
signed or reproduced copies of such letter for each of the other Underwriters, except that the
specified date referred to shall be a date not more than three business days prior to the
applicable Closing Time;
(g) Except as contemplated in the Prospectus, or disclosed in the Company’s reports filed with
the Commission, there shall not have been any material adverse change to the condition, financial
or otherwise, or in the properties, earnings, business affairs or business prospects of the
Company, the Operating Partnership and its Subsidiaries considered as one enterprise;
(h) On or after the date of this Agreement (i) no downgrading shall have occurred in the
rating accorded the Company’s debt securities or preferred shares by any “nationally recognized
statistical rating organization,” as that term is defined by the Commission for purposes of Rule
436(g)(2) and (ii) no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of any of the Company’s
debt securities or preferred shares;
(i) On or after the date of this Agreement there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a
suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a
general moratorium on commercial banking activities in New York declared by either Federal or New
York authorities or a material disruption in commercial banking or securities settlement or
clearance services in the United States; (iv) any material adverse change in the financial markets
in the United States, any outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war; or (v) the occurrence of any other
calamity or crisis or any change in financial, political or economic conditions in the United
States, if the effect of any such event specified in clause (iv) or (v) in the judgment of the
Representatives make it impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner contemplated in the Prospectus as first
amended or supplemented relating to the Securities; and
(j) The Company shall have furnished or caused to be furnished to the Representatives at the
applicable Closing Time a certificate or certificates of officers of the Company satisfactory to
the Representatives as to the accuracy of (i) the representations and warranties of the Company
herein at and as of the applicable Closing Time, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to the
20
Closing Time, as to the matters set forth in subsections (a), (g) and (h) of this Section 5
and as to such other matters as the Representatives may reasonably request and (ii) certain
financial, statistical and other information not included in the letter delivered pursuant to
Section 5(e) hereof.
6.
(a) The Company and the Operating Partnership, jointly and severally, agree to indemnify and
hold harmless each Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and any director,
officer, employee or affiliate thereof as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, arising out of any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading, or arising out of any untrue statement or
alleged untrue statement of a material fact included in the Preliminary Prospectus
Supplement, any Issuer Free Writing Prospectus or the Prospectus and any other prospectus
relating to the Securities (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or
of any claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; and
(iii) against any and all expense whatsoever, as incurred (including the reasonable
fees and disbursements of counsel), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under (i) or (ii) of this Section 6(a),
provided, however
, that this indemnity agreement shall not apply to any loss, liability,
claim, damage or expense to the extent arising out of any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity with written
information furnished to the Company by the Underwriters expressly for use in the
Registration Statement (or any amendment thereto), or in the Preliminary Prospectus
Supplement, any Issuer Free Writing Prospectus or the Prospectus and any other prospectus
relating to the Securities (or any amendment or supplement thereto); provided, further, that
the parties hereby agree that the only such information in the Prospectus Supplement and the
Prospectus is that set forth in the fourth and eighth paragraphs and
21
the first, fourth and fifth sentences of the twelfth paragraph under the caption
“Underwriting” in the Prospectus Supplement and the Prospectus, and the Underwriters hereby
consent to the use in the Prospectus of such information.
(b) Each Underwriter agrees to indemnify and hold harmless the Company and the Operating
Partnership, each person, if any, who controls the Company or the Operating Partnership within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and any officer,
director or employee thereof, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section 6, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in
the Registration Statement (or any amendment thereto), the Preliminary Prospectus Supplement, any
Issuer Free Writing Prospectus or the Prospectus and any other prospectus relating to the
Securities (or any amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by the Underwriters expressly for use therein as set forth in
clause (a) above.
(c) Each indemnified party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party
from any liability hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. If any such action is brought against any indemnified party and it
notifies the indemnifying party of its commencement, the indemnifying party will be entitled to
participate in and, to the extent that it elects by delivering written notice to the indemnified
party promptly after receiving notice of the commencement of the action from the indemnified party,
jointly with any other indemnifying party similarly notified, to assume the defense of the action,
with counsel reasonably satisfactory to the indemnified party, and after notice from the
indemnifying party to the indemnified party of its election to assume the defense, the indemnifying
party will not be liable to the indemnified party for any legal or other expenses except as
provided below and except for the reasonable costs of investigation subsequently incurred by the
indemnified party in connection with the defense. The indemnified party will have the right to
employ its own counsel in any such action, but the fees, expenses and other charges of such counsel
will be at the expense of such indemnified party unless (i) the employment of counsel by the
indemnified party has been authorized in writing by the indemnifying party, (ii) the indemnified
party has reasonably concluded (based on advice of counsel) that there may be legal defenses
available to it or other indemnified parties that are different from or in addition to those
available to the indemnifying party, (iii) a conflict or potential conflict exists (based on advice
of counsel to the indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense of such action on
behalf of the indemnified party) or (iv) the indemnifying party has not in fact employed counsel to
assume the defense of such action within a reasonable time after receiving notice of the
commencement of the action, in each of which cases the reasonable fees, disbursements and other
charges of counsel will be at the expense of the indemnifying party or parties. It is understood
that the indemnifying party or parties shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other
charges of more than one separate firm (in addition to local counsel) for all such indemnified
parties. No indemnifying party shall, without
22
the prior written consent of the indemnified parties, settle or compromise or consent to the
entry of any judgment with respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 hereof whether or not the
indemnified parties are actual or potential parties thereto, unless (x) such settlement, compromise
or consent (i) includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party and (y) the indemnifying party confirms in writing its indemnification
obligations hereunder with respect to such settlement, compromise or judgment. Notwithstanding
Section 6(a) hereof, the indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested that an indemnifying party reimburse the indemnified
party for reasonable fees and expenses of counsel as contemplated by this paragraph, the
indemnifying party shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 60 days after receipt by the
indemnifying party of such request and (ii) the indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such settlement, unless (A)
such failure to reimburse the indemnified party is based on a dispute with a good faith basis as to
either the obligation of the indemnifying party arising under this Section 6 to indemnify the
indemnified party or the amount of such obligation and (B) the indemnifying party shall have
notified the indemnified party of such good faith dispute prior to the date of such settlement.
(d) If the indemnification provided for in Section 6(a) or (b) hereof is for any reason
unavailable to or insufficient to hold harmless an indemnified party in respect of any losses,
liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Operating Partnership, on the one
hand, and the Underwriters, on the other hand, from the offering of the Securities pursuant to this
Agreement or (ii) if the allocation provided by clause (i) 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 and the Operating Partnership, on the one
hand, and of the Underwriters, on the other hand, in connection with the statements or omissions
that resulted in such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Company and the Operating Partnership, on the one hand,
and the Underwriters, on the other hand, in connection with the offering of the Securities pursuant
to this Agreement shall be deemed to be in the same proportion as the total net proceeds from the
offering of the Securities pursuant to this Agreement (before deducting expenses) received by the
Company bear to the total compensation received by the Underwriters from the sale of Securities on
behalf of the Company.
The relative fault of the Company and the Operating Partnership, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to, among other things,
23
whether any such untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the Company and the Operating
Partnership or by the Underwriters and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
Each of the Company, the Operating Partnership and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were determined by pro rata
allocation or by any other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in
this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged
omission.
Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters in this subsection (d) to
contribute are several in proportion to their respective underwriting obligations with respect to
such Securities and not joint.
For purposes of this subsection (d), each director, officer, employee or affiliate of the
Underwriters and each person, if any who controls the Underwriters within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution
as the Underwriters, and each officer and director of the Company who signed the Registration
Statement, and each person, if any who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the
Company, subject in each case to the preceding two paragraphs.
For purposes of this Section 6, the Company and the Operating Partnership shall be deemed one
party, jointly and severally liable for any obligations hereunder.
7. (a) If any Underwriter shall default at the applicable Closing Time in its obligation to
purchase the Securities which it has agreed to purchase, the Representatives may in their
discretion arrange for themselves or another party or other parties to purchase such Securities on
the terms contained herein. If within thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Securities, then the Company shall be
entitled to a further period of thirty-six hours within which to procure another party or other
parties satisfactory to the Representatives to purchase such Securities on such terms. In the
event that, within the respective prescribed period, the Representatives notify the
24
Company that they have so arranged for the purchase of such Securities, or the Company
notifies the Representatives that it has so arranged for the purchase of such Securities, the
Representatives or the Company shall have the right to postpone the Closing Time for a period of
not more than seven days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in the opinion of the Representatives may thereby be
made necessary. The term “Underwriter” as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had originally been a party to
this Agreement.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate principal amount of such Securities which remains unpurchased
does not exceed one-tenth of the aggregate principal amount of Securities to be purchased on such
date, then the Company shall have the right to require each non-defaulting Underwriter to purchase
a principal amount of Securities which such Underwriter agreed to purchase under this Agreement
and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based
on the principal amount of Securities which such Underwriter agreed to purchase hereunder) of the
Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate principal amount of such Securities which remains unpurchased
exceeds one-tenth of the aggregate principal amount of Securities to be purchased on such date or
if the Company shall not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Securities of a defaulting Underwriter or Underwriters,
then this Agreement shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company and the Underwriters
as provided in Section 4 hereof and the indemnity and contribution agreements in Section 6 hereof;
but nothing herein shall relieve a defaulting Underwriter from liability for its default.
8. The respective indemnities, agreements, representations, warranties and other statements of
the Company and the several Underwriters, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain in full force and effect, regardless
of any investigation (or any statement as to the results thereof) made by or on behalf of any
Underwriter or any controlling person of any Underwriter, or by or on behalf of the Company, and
shall survive delivery of and payment for the Securities.
9. If this Agreement shall be terminated pursuant to Section 7 hereof, the Company shall not
then be under any liability to any Underwriter with respect to the Securities except as provided in
Section 6 and Section 8 hereof. If this Agreement shall be terminated as a result of any of the
conditions set forth in Section 5 hereof (other than Section 5(b) or 5(i)(i), (iii), (iv) or (v))
not being satisfied, the Company will reimburse the Underwriters through the
25
Representatives for all out-of-pocket expenses approved in writing by the Representatives,
including fees and disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Securities, but the Company shall then be
under no further liability to any Underwriter except as provided in Sections 6 and 8 hereof.
10. In all dealings hereunder the Representatives shall act on behalf of each Underwriter, and
the parties hereto shall be entitled to act and rely upon any statement, request, notice or
agreement on behalf of any Underwriter made or given by the Representatives.
All statements, requests, notices and agreements hereunder shall be in writing, and if to the
Underwriters shall be delivered or sent by mail or facsimile transmission to the Representatives
at: Morgan Stanley & Co. Incorporated, 1585 Broadway, 26
th
Floor, New York, NY 10036,
Attention: Investment Banking Division, Facsimile: 212-507-8999, and Wells Fargo Securities, LLC,
301 S. College Street, 6
th
Floor, Charlotte, NC 28288, Attention: Transaction
Management, Facsimile: 704-383-9165; and if to the Company shall be delivered or sent by mail or
facsimile transmission to the address of the Company set forth in the Registration Statement:
Attention: Chief Financial Officer.
11. This Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters, the Company, the Operating Partnership and, to the extent provided in Sections 6 and
8 hereof, the officers and directors of the Company and each person who controls the Company, the
Operating Partnership or any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right under or by virtue of
this Agreement. No purchaser of Securities from any Underwriter shall be deemed a successor or
assign by reason merely of such purchase.
12. Time shall be of the essence. As used herein, “business day” shall mean any day when the
Commission’s office in Washington, D.C. is open for business.
13. This Agreement shall be governed by and construed in accordance with the laws of the State
of New York.
14. As used in this Agreement, the following terms have the respective meanings set forth
below:
“EDGAR” means the Commission’s Electronic Data Gathering, Analysis and Retrieval system.
“FINRA” means the Financial Industry Regulatory Authority, Inc.
“Investment Company Act” means the Investment Company Act of 1940, as amended.
“NYSE” means the New York Stock Exchange.
“Rule 163,” “Rule 172,” “Rule 173,” “Rule 401,” “Rule 405,” “Rule 415,” “Rule 424,” “Rule
430B,” “Rule 433,” “Rule 456,” “Rule 457” and “Rule 462,” and sections thereof, refer to such rules
under the Securities Act.
26
“Securities Act” means the Securities Act of 1933 and the rules and regulations thereunder.
“Significant Subsidiary” means a “Significant Subsidiary” as defined in Rule 405.
“Subsidiary” means a corporation, general partnership, limited partnership, limited liability
limited partnership, limited liability company or other entity, a majority of the outstanding
voting or capital stock, partnership, membership or other voting or equity interests or general,
limited or limited liability limited partnership interests, as the case may be, of which is
majority owned or controlled, directly or indirectly, by the Company, the Operating Partnership or
one or more other Subsidiaries of the Company or the Operating Partnership. The Operating
Partnership is a Subsidiary of the Company.
All references in this Agreement to financial statements and schedules and other information
that is “contained,” “included” or “stated” in the Registration Statement, the Disclosure Package,
the Preliminary Prospectus or the Prospectus (and all other references of like import) shall be
deemed to mean and include all such financial statements and schedules and other information that
is incorporated by reference in the Registration Statement, the Disclosure Package, the Preliminary
Prospectus or the Prospectus, as the case may be.
All references in this Agreement to the Registration Statement, the Disclosure Package, the
Preliminary Prospectus, the Prospectus or any amendment or supplement to any of the foregoing shall
be deemed to include the copy filed with the Commission pursuant to EDGAR; all references in this
Agreement to any Issuer Free Writing Prospectus (other than any Issuer Free Writing Prospectuses
that, pursuant to Rule 433, are not required to be filed with the Commission) shall be deemed to
include the copy thereof filed with the Commission pursuant to EDGAR; and all references in this
Agreement to “supplements” to the Preliminary Prospectus or the Prospectus shall include, without
limitation, any supplements, “wrappers” or similar materials prepared in connection with any
offering, sale or private placement of any Securities by the Underwriters outside of the United
States.
15. This Agreement may be executed by any one or more of the parties hereto and thereto in any
number of counterparts, each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
27
If the foregoing is in accordance with your understanding, please sign and return to us four
counterparts hereof.
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Very truly yours,
APARTMENT INVESTMENT AND MANAGEMENT COMPANY
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By:
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/s/ Ernest M. Freedman
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Name:
|
Ernest M. Freedman
|
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Title:
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Executive Vice President and
Chief Financial Officer
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AIMCO PROPERTIES, L.P.
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By:
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AIMCO-GP, Inc.,
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Its general partner
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By:
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/s/ Ernest M. Freedman
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Name:
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Ernest M. Freedman
|
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Title:
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Executive Vice President and
Chief Financial Officer
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MORGAN STANLEY & CO. INCORPORATED
|
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By:
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/s/ Yurij Slyz
|
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Name:
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Yurij Slyz
|
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Title:
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Executive Director
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WELLS FARGO SECURITIES, LLC
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By:
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/s/ Carolyn Hurley
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Name:
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Carolyn Hurley
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Title:
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Director
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Acting on behalf of themselves and as the
Representatives of the several Underwriters
SCHEDULE A
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Number of Securities
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Underwriter
|
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to be Purchased
|
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Morgan Stanley & Co. Incorporated
|
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1,600,000
|
|
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Wells Fargo Securities, LLC
|
|
|
1,600,000
|
|
|
Raymond James & Associates, Inc.
|
|
|
800,000
|
|
|
|
|
|
|
|
Total
|
|
|
4,000,000
|
|
|
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A-1