Exhibit 1.1
Execution Copy
Acadia Realty Trust
Common Shares of Beneficial Interest
($.001 par value)
Underwriting Agreement
New York, New York
March 25, 2004
Citigroup Global Markets Inc.
As Representative of the Several Underwriters
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The certain stockholders named in Schedule A hereof (the "Selling
Stockholders") of Acadia Realty Trust, a self-administered Maryland real estate
investment trust (the "Company"), propose to sell to the several underwriters
named in Schedule B (the "Underwriters") an aggregate of 5,000,000 common shares
(the "Firm Common Shares") of beneficial interests of the Company, par value
$.001 per share (the "Common Stock"). In addition, the Selling Stockholders have
granted to the Underwriters an option to purchase up to an additional 750,000
shares of Common Stock, each Selling Stockholder selling up to the amount set
forth opposite such Selling Stockholder's name in Schedule A, all as provided in
Section 2 hereof. The additional shares to be sold by the Selling Stockholders
pursuant to such options are collectively called the "Optional Common Shares."
The Firm Common Shares and, if and to the extent such options are exercised, the
Optional Common Shares are collectively called the "Common Shares." Citigroup
Global Markets Inc. has agreed to act as representative of the several
Underwriters (in such capacity, the "Representative") in connection with the
offering and sale of the Common Shares.
All of the Company's assets are held by, and all of its operations are
conducted through, Acadia Realty Limited Partnership, a Delaware limited
partnership (the "Partnership"), its majority owned subsidiaries and the joint
ventures in which the Partnership holds a minority interest. The Company is the
sole general partner of the Partnership.
SECTION 1. REPRESENTATIONS AND WARRANTIES
A. Representations and Warranties of the Company and the Partnership. As of
the date hereof, the Company and the Partnership, jointly and severally,
represent, warrant and covenant to each Underwriter as follows:
(a) Preparation and Filing of Registration Statement. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") (i) a registration statement on Form S-3 (File No. 333-31630),
which contains a prospectus dated March 29, 2000 (the "Resale Registration
Statement") and (ii) post-effective amendment no. 2 to a registration statement
on Form S-8 (File No. 333-87993) and a re-offer prospectus dated March 19, 2004
(the "Reoffer Registration Statement"), to be used in connection with the public
offering and sale of the Common Shares. Each of the Resale Registration
Statement and Reoffer Registration Statement, as amended, including the
financial statements, exhibits and schedules thereto, in the form in which it
was declared effective by the Commission under the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder (collectively, the
"Securities Act"), all documents incorporated by reference or deemed to be
incorporated by reference therein, including any information deemed to be a part
thereof at the time of effectiveness pursuant to Rule 430A or Rule 434 under the
Securities Act or the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder (collectively, the "Exchange Act") are
collectively called the "Registration Statement." Any registration statement
filed by the Company pursuant to Rule 462(b) under the Securities Act is called
the "Rule 462(b) Registration Statement," and from and after the date and time
of filing of the Rule 462(b) Registration Statement the term "Registration
Statement" shall include the Rule 462(b) Registration Statement. A prospectus
supplement (the "Prospectus Supplement") setting forth the terms of the
offering, the plan of distribution of the Common Shares and additional
information concerning the Company and its business and information concerning
the Selling Stockholders has been or will be so prepared and will be filed
pursuant to Rule 424(b) of the Securities Act on or before the second business
day after the date hereof (or such earlier time as may be required by the
Securities Act). The prospectus dated March 29, 2000 and the re-offer prospectus
dated March 19, 2004, together with the Prospectus Supplement dated March 25,
2004, in the form first used by the Underwriters to confirm sales of the Common
Shares, are called the "Prospectus;" provided, however, if the Company has, with
the consent of the Representative, elected to rely upon Rule 434 under the
Securities Act, the term "Prospectus" shall mean the Company's "prospectus
subject to completion" (as defined in Rule 434(g) under the Securities Act) last
provided to the Underwriters by the Company (each, a "preliminary prospectus")
dated March 19, 2004 (such preliminary prospectus is called the "Rule 434
preliminary prospectus"). Notwithstanding the foregoing, if any revised
prospectus shall be provided to the Underwriters by the Company for use in
connection with the offering of the Common Shares that differs from the
prospectus referred to in the immediately preceding sentence (whether or not
such revised prospectus is required to be filed with the Commission pursuant to
Rule 424(b) under the Securities Act), the term "Prospectus" shall refer to such
revised prospectus from and after the time it is first provided to the
Underwriters for such use. All references in this Agreement to the Registration
Statement, the Rule 462(b) Registration Statement, a preliminary prospectus, or
the Prospectus, or any amendments or supplements to any of the foregoing, shall
include any copy thereof filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval System ("XXXXX").
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All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the
Registration Statement 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 which are or are deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include the
filing of any document under the Exchange Act which is or is deemed to be
incorporated by reference in the Registration Statement or the Prospectus, as
the case may be.
(b Compliance with Registration Requirements. The Resale Registration
Statement was declared effective by the Commission on March 29, 2000 and the
Reoffer Registration Statement was effective upon filing with the Commission on
March 19, 2004. Any Rule 462(b) Registration Statements have been declared
effective by the Commission under the Securities Act. The Common Shares all have
been duly registered under the Securities Act. The Company has complied to the
Commission's satisfaction with all requests of the Commission for additional or
supplemental information. No stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement is in effect
and no proceedings for such purpose have been instituted or are pending or, to
the best knowledge of the Company, are contemplated or threatened by the
Commission. The Company and the transactions contemplated by this Agreement meet
the requirements and conditions for use of a registration statement on Form S-3
and Form S-8, as applicable, under the Securities Act. The Company is eligible
to use a Form S-3 registration statement under the Securities Act pursuant to
the standards for that Form in effect immediately prior to October 21, 1992.
Each preliminary prospectus and the Prospectus (and each document
incorporated by reference therein) when filed complied or will comply in all
material respects with disclosure, form and other requirements of the Securities
Act and, if filed by electronic transmission pursuant to XXXXX (except as may be
permitted by Regulation S-T under the Securities Act), the text thereof
(excluding any pictures) was identical or will be identical to the copy thereof
delivered to the Underwriters for use in connection with the offer and sale of
the Common Shares. Each of the Registration Statements, any Rule 462(b)
Registration Statement and any post-effective amendment thereto (and each
document incorporated by reference into such registration statements or
post-effective amendment), at the time it became effective and at all subsequent
times up to and on the First Closing Date (as defined below) and on any Second
Closing Date (as defined below), complied and will comply in all material
respects with the disclosure, form and other requirements of the Securities Act
and did not and will not contain any 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 document
incorporated by reference therein), as amended or supplemented, as of its date
and at all subsequent times up to and on the First Closing Date (as defined
below) and on any Second Closing Date (as defined below), complied and will
comply in all material respects with the disclosure, form and other requirements
of the Securities Act and did not and will not contain any 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 set forth in this
paragraph do not apply to statements in or omissions from the Registration
Statement, any Rule 462(b) Registration
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Statement, or any post-effective amendment thereto, or the Prospectus, or any
amendments or supplements thereto, made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by
the Representative expressly for use therein. There are no contracts or other
documents required to be described in the Prospectus or the Registration
Statement or to be filed as exhibits to the Registration Statement which have
not been described or filed as required.
(c) Offering Materials Furnished to Underwriters. The Company has delivered
or will deliver to the Representative one complete manually signed copy of the
Registration Statement and of each consent and certificate of experts filed as a
part thereof and conformed copies of the Registration Statement (without
exhibits) and preliminary prospe. uses and the Pro spectus, as amended or
supplemented, in such quantities and at such places as the Representative has
reasonably requested for each of the Underwriters.
(d) Distribution of Offering Material by the Company. The Company has not
distributed and will not distribute, prior to the later of the Second Closing
Date (as defined below) and the completion of the Underwriters' distribution of
the Common Shares, any offering material in connection with the offering and
sale of the Common Shares other than a preliminary prospectus, the Prospectus
and the Registration Statement or other materials permitted by the Securities
Act.
(e) The Underwriting Agreement. This Agreement has been duly authorized,
executed and delivered by, and is a valid and binding agreement of, the Company
and the Partnership, enforceable against the Company and the Partnership in
accordance with its terms, except as rights to indemnification hereunder may be
limited by applicable law and except as the enforcement hereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights and remedies of creditors or by general
equitable principles.
(f) Authorization of the Common Shares. The Common Shares issued to the
Selling Stockholders to be purchased by the Underwriters were duly authorized
for issuance and are validly issued, fully paid and nonassessable.
(g) No Applicable Registration or Other Similar Rights. There are no
persons with registration or other similar rights to have any equity or debt
securities registered for sale under the Registration Statement or included in
the offering contemplated by this Agreement, other than the Selling Stockholders
with respect to the Common Shares included in the Registration Statement, except
for such rights as have been satisfied under this Agreement or have been duly
waived.
(h) No Material Adverse Change. Except as otherwise disclosed in the
Prospectus, subsequent to the respective dates as of which information is given
in the Prospectus: (i) there has been no material adverse change, or any
development that could reasonably be expected to result in a material adverse
change, in the condition, financial or otherwise, or in the earnings, business,
operations or prospects, whether or not arising from transactions in the
ordinary course of business, of the Company, the Partnership, and their
subsidiaries, considered as one entity (any such change is called a "Material
Adverse Change"); (ii) the Company, the Partnership and their subsidiaries,
considered as one entity, have not incurred any material liability or
obligation,
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indirect, direct or contingent, not in the ordinary course of business nor
entered into any material transaction or agreement not in the ordinary course of
business; and (iii) there has been no dividend or distribution of any kind
declared, paid or made by the Company or the Partnership or, except for
dividends paid to the Company, the Partnership or other subsidiaries, any of
their subsidiaries on any class of capital stock or repurchase or redemption by
the Company, the Partnership or any of their subsidiaries of any class of
capital stock.
(i) Independent Accountants. Ernst & Young LLP, who have expressed their
opinion with respect to the financial statements (which term as used in this
Agreement includes the related notes thereto) and supporting schedules filed
with the Commission as a part of the Registration Statement and included in the
Prospectus, are independent public or certified public accountants as required
by the Securities Act and the Exchange Act.
(j) Preparation of the Financial Statements. The financial statements filed
with the Commission as a part of the Registration Statement and included in the
Prospectus present fairly the consolidated financial position of the Company and
its subsidiaries as of and at the dates indicated and the results of their
operations and cash flows for the periods specified. The supporting schedules
included in the Registration Statement present fairly the information required
to be stated therein. Such financial statements and supporting schedules comply
as to form with the applicable accounting requirements of the Exchange Act and
the Securities Act and have been prepared in conformity with generally accepted
accounting principles as applied in the United States applied on a consistent
basis throughout the periods involved, except as may be expressly stated in the
related notes thereto. No other financial statements or supporting schedules are
required to be included in the Registration Statement. The financial data set
forth in the Prospectus under the captions "Prospectus Supplement
Summary--Selected Financial Data" and "Capitalization" fairly present the
information set forth therein on a basis consistent with that of the audited
financial statements contained in the Registration Statement. Any non-GAAP
financial measures, as defined under Regulation G under the Securities Act,
included in the Prospectus are permitted for use in documents filed with the
Commission.
(k) Organization and Good Standing of the Company, the Partnership and
their Subsidiaries. Each of the Company, the Partnership, and their subsidiaries
has been duly incorporated, formed or organized, as the case may be, and is
validly existing as a corporation, partnership, limited liability company or
other legal entity in good standing under the laws of the jurisdiction of its
incorporation, organization or formation and has full corporate or other power
and authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and, in the case of the Company and the
Partnership, to enter into and perform their respective obligations under this
Agreement. Each of the Company and each subsidiary is duly qualified as a
foreign corporation or other legal entity to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except for such jurisdictions where the failure to so qualify or to be in good
standing would not, individually or in the aggregate, result in a Material
Adverse Change. All of the issued and outstanding capital stock, membership
interests, partnership interests or similar equity interests of each subsidiary
have been duly authorized and validly issued, are fully paid and nonassessable
and the equity interests in each subsidiary which are owned by the Company,
directly or through subsidiaries, are free and clear of any security interest,
mortgage, pledge, lien, encumbrance or claim. The Company
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does not own or control, directly or indirectly, any corporation, association or
other entity other than the subsidiaries listed in Exhibit 21 to the Company's
Annual Report on Form 10-K for the period ended December 31, 2003. There are no
subsidiaries of the Company that meet the definition of "significant
subsidiaries" under Regulation S-X under the Securities Act.
(l) Capitalization and Other Capital Stock Matters. As of December 31,
2003, the authorized, issued and outstanding capital stock of the Company is as
set forth in the Prospectus under the caption "Capitalization" (other than for
subsequent issuances, if any, pursuant to employee benefit plans described in
the Prospectus or upon exercise of outstanding options described in the
Prospectus). The Common Stock (including the Common Shares) conforms in all
material respects to the description thereof contained in the Prospectus. All of
the issued and outstanding shares of Common Stock (including the shares of
Common Stock owned by Selling Stockholders) have been duly authorized and
validly issued, are fully paid and nonassessable and have been offered, sold and
issued in compliance with federal and state securities laws. All of the issued
and outstanding units of limited partnership interest in the Partnership (the
"OP Units") have been duly authorized by the Partnership. None of the
outstanding shares of Common Stock were issued in violation of any preemptive
rights, rights of first refusal or other similar rights to subscribe for or
purchase securities of the Company and the holders of outstanding shares of
capital stock of the Company are not entitled to preemptive or other rights to
subscribe for the Common Shares. There are no authorized or outstanding options,
warrants, preemptive rights, rights of first refusal or other rights to
purchase, or equity or debt securities convertible into or exchangeable or
exercisable for, any capital stock or ownership interests in the Company or any
of its subsidiaries other than those accurately described in the Prospectus. The
description of the Company's stock option, stock bonus and other stock plans or
arrangements, and the options or other rights granted thereunder, set forth in
the Prospectus accurately and fairly presents the information required to be
shown with respect to such plans, arrangements, options and rights.
(m) Stock Exchange Listing. The Common Shares (except for 1,000,000 shares
of Common Stock held by Xxxx Xxxxxxx as a result of exercising options issued
under an equity compensation plan) are duly listed and admitted and authorized
for trading on the New York Stock Exchange. On the First Closing Date and the
Second Closing Date, the Common Shares will be duly listed and admitted and
authorized for trading on the New York Stock Exchange.
(n) Non-Contravention of Existing Instruments; No Further Authorizations or
Approvals Required. Neither the Company, the Partnership nor any of their
subsidiaries is in violation of its respective charter, declaration of trust,
by-laws, certificate of formation, partnership agreement, operating agreement or
similar documents or is in default (or, with the giving of notice or lapse of
time, would be in default) ("Default") under any indenture, mortgage, loan or
credit agreement, note, contract, franchise, lease or other agreement,
obligation, condition, covenant or instrument to which the Company, the
Partnership or any of their subsidiaries is a party or by which it or any of
them may be bound, or to which any of the property or assets of the Company, the
Partnership or any of their subsidiaries is subject (each, an "Existing
Instrument"), except for such Defaults as would not, individually or in the
aggregate, result in a Material Adverse Change. The Company's and the
Partnership's execution, delivery and performance of this Agreement and
consummation of the transactions contemplated hereby and by the Prospectus (i)
will not result in any violation of the provisions of the respective charter,
declaration of trust,
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by-laws, certificate of formation, partnership agreement, operating agreement or
similar documents of the Company, the Partnership or any subsidiary, (ii) will
not conflict with or constitute a breach of, or Default or a Debt Repayment
Triggering 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 Partnership or any of their subsidiaries pursuant to, or require
the consent of any other party to, any Existing Instrument, except for such
conflicts, breaches, Defaults, Debt Repayment Triggering Events (as defined
below), liens, charges or encumbrances as would not, individually or in the
aggregate, result in a Material Adverse Change and (iii) will not result in any
violation of any law, statute, rule, regulation, judgment, order or decree,
administrative regulation or administrative or court decree applicable to the
Company, the Partnership or any subsidiary or any of its or their property. No
consent, approval, authorization or other order of, or registration or filing
with, any court or other governmental or regulatory authority or agency, is
required for the Company or the Partnership's execution, delivery and
performance of this Agreement and consummation of the transactions contemplated
hereby and by the Prospectus, except such as have been obtained or made by the
Company and the Partnership and are in full force and effect under the
Securities Act, applicable state securities or blue sky laws of any jurisdiction
in connection with the purchase and distribution of Common Shares in the manner
contemplated hereby and in the Prospectus. As used herein, a "Debt Repayment
Triggering Event" means any event or condition which gives, or with the giving
of notice or lapse of time would give, 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 Partnership or any of its subsidiaries.
(o) No Material Actions or Proceedings. Except as otherwise disclosed in
the Prospectus, there are no legal or governmental actions, suits,
investigations or proceedings pending or, to the best of the Company's or the
Partnership's knowledge, threatened (i) against or affecting the Company, the
Partnership or any of their subsidiaries, (ii) which has as the subject thereof
any officer or trustee of, or property owned or leased by, the Company, the
Partnership or any of their subsidiaries or (iii) relating to environmental or
discrimination matters, which would reasonably be expected to result in a
Material Adverse Change or adversely affect the consummation of the transactions
contemplated by this Agreement. No material labor dispute with the employees of
the Company, the Partnership or any of their subsidiaries exists or, to the best
of the Company's and the Partnership's knowledge, is threatened or imminent and
the Company and Partnership is not aware of any existing or imminent labor
disturbance by the employees at any of its or its subsidiaries' principal
suppliers, contractors or customers that could result in a Material Adverse
Change.
(p) Intellectual Property Rights. The Company, the Partnership and their
subsidiaries own or possess sufficient trademarks, trade names, patent rights,
copyrights, domain names, licenses, approvals, trade secrets and other similar
rights (collectively, "Intellectual Property Rights") reasonably necessary to
conduct their businesses as now conducted or as proposed to be conducted in the
Prospectus, and the expected expiration of any of such Intellectual Property
Rights would not result in a Material Adverse Change. Neither the Company, the
Partnership, nor any of their subsidiaries has received any notice of
infringement or conflict with asserted Intellectual Property Rights of others,
which infringement or conflict, if the subject of an unfavorable decision, would
result in a Material Adverse Change. The Company and the
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Partnership are not parties to or bound by any options, licenses or agreements
with respect to the Intellectual Property Rights of any other person or entity
that are required to be set forth in the Prospectus and are not described in all
material respects. None of the technology employed by the Company or the
Partnership has been obtained or is being used by the Company or the Partnership
in violation of any contractual obligation binding on the Company, the
Partnership or, to the Company or Partnership's knowledge, any of their
officers, trustees or employees or is otherwise in violation of the rights of
any persons, except for violations which would not, individually or in the
aggregate, result in a Material Adverse Change.
(q) All Necessary Permits, etc. The Company, the Partnership and each
subsidiary possess such valid and current certificates, authorizations, licenses
or permits issued by the appropriate state, federal or foreign regulatory
agencies or bodies necessary to conduct their respective businesses, except
where the failure to possess such certificate, authorizations or permits would
not, individually or in the aggregate, result in a Material Adverse Change, and
neither the Company, the Partnership nor any subsidiary has received any notice
of proceedings relating to the revocation or modification of, or non-compliance
with, any such certificate, authorization, license or permit which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or finding,
could result in a Material Adverse Change.
(r) Title to Properties. Each of the Company, the Partnership and each of
their subsidiaries owns or leases all such properties as are necessary to the
conduct of their respective operations as presently conducted. The Company, the
Partnership and each of their subsidiaries has good and marketable title to all
the properties and assets reflected as owned in the Company's consolidated
financial statements (and schedules thereto) or elsewhere in the Prospectus, in
each case free and clear of any security interests, mortgages, liens,
encumbrances, equities, claims and other defects, except where the existence of
any security interest, mortgage, lien, encumbrance, equity, claim or other
defect would not, individually or in the aggregate, result in a Material Adverse
Change. The real property, improvements, equipment and personal property held
under lease by the Company, the Partnership or any subsidiary are held under
valid and enforceable leases, except where the invalidity or unenforceability of
any leases would not, individually or in the aggregate, result in a Material
Adverse Change.
(s) Tax Law Compliance. The Company, the Partnership and their subsidiaries
have filed all necessary federal, state, local and foreign income and franchise
tax returns or have properly requested extensions thereof and have paid all
taxes required to be paid by any of them and, if due and payable, any related or
similar assessment, fine or penalty levied against any of them except as may be
being contested in good faith and by appropriate proceedings. To the knowledge
of the Company, there is no tax deficiency likely to be asserted against the
Company, the Partnership or any of their subsidiaries. All tax liabilities, if
any, of the Company, the Partnership and their subsidiaries are adequately
provided for on the respective books of the entities.
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(t) Qualification as a Real Estate Investment Trust. The Company has met
the requirements for qualification and taxation as a real estate investment
trust ("REIT") under the Internal Revenue Code of 1986, as amended (the "Code"),
as of the close of every taxable year during the Company's existence, and the
Company's current and proposed method of operation will enable it to continue to
meet the requirements for qualification and taxation as a real estate investment
trust for federal income tax purposes.
(u) Partnership Qualification. Each of the Partnership and any subsidiary
limited liability company or partnership is qualified as a partnership or a
disregarded entity for federal income tax purposes and not as an association
taxable as a corporation or as a publicly traded partnership.
(v) Company Not an "Investment Company." Each of the Company and the
Partnership are not, and after the sale of the Shares by the Selling
Stockholders will not be, an "investment company" or a company "controlled" by
an "investment company" within the meaning of the Investment Company Act of
1940, as amended (the "Investment Company Act") and will conduct its business in
a manner so that it will not become subject to the Investment Company Act.
(w) Insurance. Each of the Company, the Partnership and their subsidiaries
are insured by recognized, financially sound and reputable institutions with
policies in such amounts and with such deductibles and covering such risks as
are prudent and customary for their respective businesses including, but not
limited to, policies covering real and personal property owned or leased by the
Company, the Partnership and their subsidiaries against theft, damage,
destruction, acts of vandalism and all other risks customarily insured against.
All such policies of insurance are in full force and effect. There are no claims
by the Company, the Partnership or any of their subsidiaries under any such
policy or instrument as to which any insurance company is denying liability or
defending under a reservation of rights clause, except where such denial or
defense would not, individually or in the aggregate, result in a Material
Adverse Change. Neither the Company, the Partnership nor any subsidiary has been
refused insurance coverage sought or applied for and neither the Company, the
Partnership nor any subsidiary has reason to believe that it or any subsidiary
will not be able (i) to renew its existing insurance coverage as and when such
policies expire or (ii) to obtain comparable coverage from similar institutions
as may be necessary or appropriate to conduct its business as now conducted and
at a cost that would not result in a Material Adverse Change.
(x) No Price Stabilization or Manipulation. The Company and the Partnership
have not taken and will not take, directly or indirectly, any action designed to
or that might be reasonably expected to cause or result in, under the Exchange
Act or otherwise, stabilization or manipulation of the price of the any security
of the Company to facilitate resale of the Common Shares. The Company
acknowledges that the Underwriters may engage in passive market making
transactions in the Common Shares in accordance with Regulation M under the
Exchange Act.
(y) Exchange Act Compliance. The documents incorporated or deemed to be
incorporated by reference in the Prospectus, at the time they were or hereafter
are filed with the Commission, complied and will comply in all material respects
with the disclosure, form and other requirements of the Exchange Act, and, when
read together with the other information in the
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Prospectus, at the time the Registration Statement and any amendments thereto
become effective and at the First Closing Date and the Second Closing Date, as
the case may be, 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
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.
(z) No Unlawful Contributions or Other Payments. Neither the Company, the
Partnership nor any of their subsidiaries nor, to the knowledge of the Company
or the Partnership, any trustee, officer, agent, employee or affiliate of the
Company, the Partnership or any of their subsidiaries is aware of or has taken
any action, directly or indirectly, that would result in a violation of such
persons of 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
Partnership, their subsidiaries and, to the knowledge of the Company and the
Partnership, their 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. "FCPA" means Foreign Corrupt Practices Act of 1977, as
amended, and the rules and regulations thereunder.
(aa) Company's Accounting System. The Company has implemented controls and
other 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 executive management as appropriate to allow
timely decisions regarding required disclosure. The Company makes and keeps
books, records, and accounts, which accurately and fairly reflect in reasonable
detail the transactions and dispositions of the assets of the Company. The
Company, the Partnership and each of their 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 generally accepted
accounting principles as applied in the United States and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(bb) Compliance with Environmental Laws. Except as (x) otherwise described
in the Prospectus or (y) would not, individually or in the aggregate, result in
a Material Adverse Change (i) neither the Company, the Partnership, nor any of
their subsidiaries is in violation of any federal, state, local or foreign law
or regulation relating to pollution or protection of human health or the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including without
limitation, laws and regulations relating to emissions, discharges, releases or
threatened releases of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum and
10
petroleum products (collectively, "Materials of Environmental Concern"), or
otherwise relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Materials of Environmental Concern
(collectively, "Environmental Laws"), which violation includes, but is not
limited to, noncompliance with any permits or other governmental authorizations
required for the operation of the business of the Company, the Partnership or
their subsidiaries under applicable Environmental Laws, or noncompliance with
the terms and conditions thereof, nor has the Company, the Partnership or any of
their subsidiaries received any written communication, whether from a
governmental authority, citizens group, employee or otherwise, that alleges that
the Company, the Partnership or any of their subsidiaries is in violation of any
Environmental Law; (ii) there is no claim, action or cause of action filed with
a court or governmental authority, no investigation with respect to which the
Company or the Partnership has received written notice, and no written notice by
any person or entity alleging potential liability for investigatory costs,
cleanup costs, governmental responses costs, natural resources damages, property
damages, personal injuries, attorneys' fees or penalties arising out of, based
on or resulting from the presence, or release into the environment, of any
Materials of Environmental Concern at any location owned, leased or operated by
the Company, the Partnership or any of their subsidiaries, now or in the past
(collectively, "Environmental Claims"), pending or, to the best of the Company's
and the Partnership's knowledge, threatened against the Company, the Partnership
or any of their subsidiaries or any person or entity whose liability for any
Environmental Claim the Company, the Partnership or any of their subsidiaries
has retained or assumed either contractually or by operation of law; and (iii)
to the Company's and the Partnership's knowledge, there are no past or present
actions, activities, circumstances, conditions, events or incidents, including,
without limitation, the release, emission, discharge, presence or disposal of
any Materials of Environmental Concern, that reasonably could result in a
violation of any Environmental Law or form the basis of a potential
Environmental Claim against the Company, the Partnership or any of their
subsidiaries or against any person or entity whose liability for any
Environmental Claim the Company, the Partnership, or any of their subsidiaries
has retained or assumed either contractually or by operation of law. Except as
set forth in the Prospectus, neither the Company, the Partnership nor any
subsidiary has been named as a "potentially responsible party" under the
Comprehensive Environmental Responses Compensation and Liability Act of 1980, as
amended.
(cc) Periodic Review of Costs of Environmental Compliance. In the ordinary
course of its business, the Company and the Partnership conduct a periodic
review of the effect of Environmental Laws on the business, operations and
properties of the Company, the Partnership and their subsidiaries, in the course
of which it identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating expenditures required
for clean-up, closure of properties or compliance with Environmental Laws or any
permit, license or approval, any related constraints on operating activities and
any potential liabilities to third parties). On the basis of such review and the
amount of its established reserves, the Company and the Partnership have
reasonably concluded that such associated costs and liabilities would not,
individually or in the aggregate, result in a Material Adverse Change.
(dd) ERISA Compliance. The Company, the Partnership and their subsidiaries
and any "employee benefit plan" (as defined under the Employee Retirement Income
Security Act of 1974, as amended, and the regulations and published
interpretations thereunder (collectively, "ERISA")) established or maintained by
the Company, the Partnership and their subsidiaries or
11
their "ERISA Affiliates" (as defined below) are in compliance in all material
respects with ERISA. "ERISA Affiliate" means, with respect to the Company, the
Partnership or a subsidiary, any member of any group of organizations described
in Sections 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as
amended, and the regulations and published interpretations thereunder (the
"Code"), of which the Company, the Partnership or such subsidiary is a member.
No "reportable event" (as defined under ERISA) has occurred or is reasonably
expected to occur with respect to any "employee benefit plan" established or
maintained by the Company, the Partnership, their subsidiaries or any of their
ERISA Affiliates. No "employee benefit plan" established or maintained by the
Company, the Partnership, their subsidiaries or any of their ERISA Affiliates,
if such "employee benefit plan" were terminated, would have any "amount of
unfunded benefit liabilities" (as defined under ERISA). Neither the Company, the
Partnership, their subsidiaries nor any of their ERISA Affiliates has incurred
or reasonably expects to incur any liability under (i) Title IV of ERISA with
respect to termination of, or withdrawal from, any "employee benefit plan" or
(ii) Sections 412, 4971, 4975 or 4980B of the Code. Each "employee benefit plan"
established or maintained by the Company, the Partnership, their subsidiaries or
any of their ERISA Affiliates that is intended to be qualified under Section
401(a) of the Code is so qualified and nothing has occurred, whether by action
or failure to act, which would cause the loss of such qualification.
(ee) Brokers. Except as disclosed in the Prospectus, there is no broker,
finder or other party that is entitled to receive from the Company, the
Partnership, or to their knowledge, the Selling Stockholders, any brokerage or
finder's fee or other fee or commission as a result of any transactions
contemplated by this Agreement.
(ff) No Outstanding Loans or Other Indebtedness. There are no outstanding
loans, advances (except normal advances for business expenses in the ordinary
course of business) or guarantees or indebtedness by the Company, the
Partnership or any of their subsidiaries to or for the benefit of any of the
officers or trustees of the Company or any of their family members, except as
disclosed in the Prospectus.
(gg) Compliance with Laws. The Company and the Partnership have not been
advised, and has no reason to believe, that they and each of their subsidiaries
are not conducting business in compliance with all applicable laws, rules and
regulations of the jurisdictions in which it is conducting business, except
where failure to be so in compliance would not result in a Material Adverse
Change.
(hh) Transfer Taxes. There are no transfer taxes or other similar fees or
charges under federal law or the laws of any state, or any political subdivision
thereof, required to be paid in connection with the execution and delivery of
this Agreement or the transfer by the Selling Stockholders of the Common Shares.
(ii) Dividends and Loans. No subsidiary of the Company is currently
prohibited, directly or indirectly, from paying any dividends to the Company,
from making any other distribution on such subsidiary's capital stock, from
repaying to the Company any loans or advances to such subsidiary from the
Company or from transferring any of such subsidiary's property or assets to the
Company or any other subsidiary of the Company, except as described in or
contemplated by the Prospectus.
12
(jj) Xxxxxxxx-Xxxxx; NYSE Listing Standards. There is and has been no
failure on the part of the Company and any of the Company's trustees or
officers, in their capacities as such, to comply with any provision of the
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in
connection therewith (the "Xxxxxxxx-Xxxxx Act"), including Section 402 of the
Xxxxxxxx-Xxxxx Act related to loans and Sections 302 and 906 thereof related to
certifications. The Company is in compliance with the current listing standards
of the New York Stock Exchange.
(kk) Recordkeeping and Reporting. The operations of the Company, the
Partnership and their subsidiaries 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 jurisdictions, the rules and regulations
thereunder and any related or similar 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 agency, authority or body or any arbitrator involving the Company,
the Partnership or any of their subsidiaries with respect to the Money
Laundering Laws is pending or, to the best knowledge of the Company or the
Partnership threatened.
(ll) Treasury Department Sanctions. Neither the Company, the Partnership
nor any of their subsidiaries nor, to the knowledge of the Company, the
Partnership, any trustee, officer, agent, employee or affiliate of the Company
or Partnership or any of their subsidiaries is currently subject to any U.S.
sanctions administered by the Office of Foreign Assets Control of the U.S.
Treasury Department.
(mm) Partnership Agreement. The limited partnership agreement of the
Partnership, including any amendments thereto, has been duly and validly
authorized, executed and delivered by all the partners of the Partnership and
constitutes a valid and binding agreement, enforceable in accordance with its
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally or by general
principles of equity.
B. Representations and Warranties of the Selling Stockholders. Each Selling
Stockholder severally, and not jointly, represents, warrants and covenants to
each Underwriter as follows:
(a) The Underwriting Agreement; Custody Agreement; Power of Attorney. This
Agreement, that certain custody agreement (the "Custody Agreement"), dated March
19, 2004, between the Company, as custodian (the "Custodian"), and such Selling
Stockholder and that certain power of attorney (the "Power of Attorney"), dated
March 19, 2004, executed by such Selling Stockholder appointing such person
indicated in the Schedule C hereto as such Selling Stockholder's
attorney-in-fact (the "Attorney-in-Fact") have been duly authorized, executed
and delivered by or on behalf of such Selling Stockholder and are valid and
binding agreements of such Selling Stockholder, enforceable in accordance with
their respective terms, except as rights to indemnification or contribution
hereunder may be limited by applicable law and except as the enforcement hereof
or thereof may be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws relating to or affecting the rights and remedies of
creditors or by general equitable principles.
13
(b) Title to Common Shares to be Sold; All Authorizations Obtained. On the
First Closing Date and the Second Closing Date (as defined below), such Selling
Stockholder will have good and marketable title to all of the Common Shares
which may be sold by such Selling Stockholder pursuant to this Agreement on such
date free and clear of all security interests, claims, liens, equities or other
encumbrances and the legal right and power (other than as provided for in the
Custody Agreement), and all authorizations and approvals required by law and
under its organizational documents, if applicable, to enter into this Agreement,
the Custody Agreement and the Power of Attorney, to sell, transfer and deliver
all of the Common Shares which may be sold by such Selling Stockholder pursuant
to this Agreement and to comply with its other obligations hereunder and
thereunder.
(c) Delivery of the Common Shares to be Sold. Upon payment for the Common
Shares to be sold by such Selling Stockholder as provided herein, delivery of
such Common Shares, as directed by the Underwriters, to Cede & Co. ("Cede") or
such other nominee as may be designated by Depository Trust Company ("DTC"),
registration of such Common Shares in the name of Cede or such other nominee and
on the Company's share registry in accordance with the Company's Declaration of
Trust, By-laws and applicable law and as required by Section 8-401 of the
Uniform Commercial Code as in effect in the State of New York (the "UCC") and an
indication from DTC by book entry that in the case of each Underwriter, the
Common Shares being purchased by or on behalf of such Underwriter have been
credited to "securities accounts" (as defined in Section 8-501 of the UCC) of
such Underwriter with DTC (assuming that neither DTC nor any such Underwriter
has notice of any adverse claim (as such phrase is defined in Section 8-105 of
the UCC) to such Common Shares), (i) DTC shall be a "protected purchaser" of
such Common Shares within the meaning of Section 8-303 of the Uniform Commercial
Code ("UCC"), and (ii) under Section 8-501 of the UCC, each Underwriter will
acquire a valid "security entitlement" (as defined in Section 8-102 of the UCC)
to the Common Shares being so purchased by or on behalf of such Underwriter,
and, to the extent governed by the UCC, no action based on any "adverse claim"
(as defined in Section 8-102 of the UCC) (a "UCC Adverse Claim") to such Common
Shares (or security entitlement with respect thereto) may properly be asserted
against such Underwriter with respect to such security entitlement; it being
understood that for the purpose of this representation and warranty, such
Selling Stockholder may assume that when such payment, delivery, registration
and crediting occur, (x) Cede or such other nominee is not a "securities
intermediary" (as defined in Section 8-102 of the UCC), (y) registration of such
Common Shares in the name of Cede or another nominee designated by DTC is
effective to register such Common Shares in the name of DTC for purposes of
Section 8-106(b)(2) of the UCC, and (z) DTC is a "clearing corporation" (as
defined in Section 8-102 of the UCC).
(d) Non-Contravention; No Further Authorizations or Approvals Required. The
execution and delivery by such Selling Stockholder of, and the performance by
such Selling Stockholder of its obligations under, this Agreement, the Custody
Agreement or the Power of Attorney will not contravene or conflict with, result
in a breach of, or constitute a Default under, or require the consent of any
other party to, the organizational documents of such Selling Stockholder or any
other agreement or instrument to which such Selling Stockholder is a party or by
which it is bound or under which it is entitled to any right or benefit, any
provision of applicable law or any judgment, order, decree or regulation
applicable to such Selling Stockholder of any court, regulatory body,
administrative agency, governmental body or arbitrator having jurisdiction over
14
such Selling Stockholder. No consent, approval, authorization or other order of,
or registration or filing with, any court or other governmental authority or
agency, is required for the consummation by such Selling Stockholder of the
transactions contemplated in this Agreement, the Custody Agreement and the Power
of Attorney, except such as have been obtained or made and are in full force and
effect under the Securities Act, applicable state securities or blue sky laws
and from the NASD.
(e) No Registration or Other Similar Rights. Such Selling Stockholder does
not have any registration or other similar rights to have any equity or debt
securities registered for sale by the Company under the Registration Statement
or included in the offering contemplated by this Agreement, except rights that
are waived for purposes of this offering or satisfied by this offering.
(f) No Further Consents, etc. No consent, approval or waiver is required
under any instrument or agreement to which such Selling Stockholder is a party
or by which it is bound or under which it is entitled to any right or benefit,
in connection with the offering, sale or purchase by the Underwriters of any of
the Common Shares which may be sold by such Selling Stockholder under this
Agreement or the consummation by such Selling Stockholder of any of the other
transactions contemplated hereunder or under the Custody Agreement or the Power
of Attorney.
(g) Disclosure Made by Such Selling Stockholder in the Prospectus. All
information furnished by or on behalf of such Selling Stockholder in writing
expressly for use in the Registration Statement and Prospectus is, and on the
First Closing Date and the Second Closing Date will be, true, correct, and
complete in all material respects, and does not, and on the First Closing Date
and the Second Closing Date will not, contain any untrue statement of a material
fact or omit to state any material fact necessary to make such information not
misleading. Such Selling Stockholder confirms as accurate the number of shares
of Common Stock set forth opposite such Selling Stockholder's name in the
Prospectus under the two captions titled "Selling Shareholders" (both prior to
and after giving effect to the sale of the Common Shares).
(h) No Price Stabilization or Manipulation. Such Selling Stockholder has
not taken and will not take, directly or indirectly, any action designed to or
that might be reasonably expected to cause or result in stabilization or
manipulation of the price of the Common Stock to facilitate the sale or resale
of the Common Shares.
(i) Registration Statement and Prospectus. Such Selling Stockholder is not
prompted to sell its Common Shares by any material information concerning the
Company of which such Selling Stockholder is aware and which is not set forth in
the Registration Statement and the Prospectus. Any certificate signed by or on
behalf of such Selling Stockholder and delivered to the Representative or to
counsel for the Underwriters shall be deemed to be a representation and warranty
by such Selling Stockholder to each Underwriter as to the matters covered
thereby. Such Selling Stockholder acknowledges that the Underwriters and, for
purposes of the opinion to be delivered pursuant to Section 5 hereof, counsel to
the Company and counsel to the Underwriters, will rely upon the accuracy and
truthfulness of the foregoing representations and hereby consents to such
reliance.
15
(j) Certificates Representing Common Shares. The certificates of Common
Stock in negotiable form, together, representing all of the Common Shares to be
sold by such Selling Stockholder hereunder have been placed in custody under the
Custody Agreement, in the form heretofore furnished to you, and under the Power
of Attorney, in the form heretofore furnished to you, the Attorney-in-Fact has
been granted authority to execute and deliver this Agreement on behalf of such
Selling Stockholder, to determine the purchase price to be paid by the
Underwriters to the Selling Stockholders as provided in Section 2 hereof, to
authorize the delivery of the Common Shares to be sold by such Selling
Stockholder hereunder and otherwise to act on behalf of such Selling Stockholder
in connection with the transactions contemplated by this Agreement, the Custody
Agreement and the Power of Attorney.
(k) Interest in Shares. The Common Shares represented by the certificates
held in custody for such Selling Stockholder under the Custody Agreement and
Power of Attorney are subject to the interests of the Underwriters hereunder;
the appointment by such Selling Stockholder of the Attorney-in-Fact by the
Custody Agreement and the Power of Attorney is irrevocable to the extent set
forth in the Custody Agreement and the Power of Attorney; the obligations of
such Selling Stockholder hereunder shall not be terminated by operation of law,
whether by the death or incapacity of any individual Selling Stockholder or, in
the case of an estate or trust, by the death or incapacity of any executor or
trustee or the termination of such estate or trust, or in the case of a
partnership, limited liability company or corporation, by the dissolution of
such partnership, limited liability company or corporation, or by the occurrence
of any other event; if any individual Selling Stockholder or any such executor
or trustee should die or become incapacitated, or if any such estate or trust
should be terminated, or if any such partnership, limited liability company or
corporation should be dissolved, or if any other such event should occur, before
the delivery of the certificates representing the Common Shares shall be
delivered by or on behalf of the Selling Stockholders in accordance with the
terms and conditions of this Agreement and the Custody Agreement and the Power
of Attorney; and actions taken by the Attorney-in-Fact pursuant to any Custody
Agreement and Power of Attorney shall be as valid as if such death, incapacity,
termination, dissolution or other event had not occurred, regardless of whether
or not the Custodian, the Attorney-in-Fact, or any of them, shall have received
notice of such death, incapacity, termination, dissolution or other event.
SECTION 2. PURCHASE, SALE AND DELIVERY OF THE COMMON SHARES
(a) The Firm Common Shares. Upon the terms herein set forth, the Selling
Stockholders agree to sell to the several Underwriters an aggregate of 5,000,000
Firm Common Shares, each Selling Stockholder selling the number of Firm Common
Shares set forth opposite such Selling Stockholder's name on Schedule A. On the
basis of the representations, warranties and agreements herein contained, and
upon the terms but subject to the conditions herein set forth, the Underwriters
agree, severally and not jointly, to purchase from the Selling Stockholders the
respective number of Firm Common Shares set forth opposite their names on
Schedule B. The purchase price per Firm Common Share to be paid by the several
Underwriters to the Selling Stockholders shall be $13.0625 per share.
(b) The First Closing Date. Delivery of certificates for the Firm Common
Shares to be purchased by the Underwriters and payment therefor shall be made at
the offices of the Representative, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (or such other place as may
16
be agreed to by the Company and the Representative) at 9:00 a.m. New York time,
on March 31, 2004, or such other time and date not later than 12:30 p.m. New
York time, on April 12, 2004, as the Representative shall designate by written
notice to the Company (the time and date of such closing are called the "First
Closing Date"). The Company and the Selling Stockholders hereby acknowledge that
circumstances under which the Representative may provide notice to postpone the
First Closing Date as originally scheduled include, but are in no way limited
to, any determination by the Company, the Selling Stockholders or the
Representative to recirculate to the public copies of an amended or supplemented
Prospectus or a delay as contemplated by the provisions of Section 9 hereof.
(c) The Optional Common Shares; the Second Closing Date. In addition, on
the basis of the representations, warranties and agreements herein contained,
and upon the terms but subject to the conditions herein set forth, the Selling
Stockholders hereby grant an option to the several Underwriters to purchase,
severally and not jointly, up to an aggregate of 750,000 Optional Common Shares
from the Selling Stockholders at the purchase price per share to be paid by the
Underwriters for the Firm Common Shares. The option granted hereunder is for use
by the Underwriters solely in covering any over-allotments in connection with
the sale and distribution of the Firm Common Shares. The option granted
hereunder may be exercised at any time, from time to time, upon written notice
by the Representative to the Selling Stockholders and the Company, which notices
may be given at any time within 30 days from the date of this Agreement. Such
notice shall set forth (i) the aggregate number of Optional Common Shares as to
which the Underwriters are exercising the option, (ii) the names and
denominations in which the certificates for the Optional Common Shares are to be
registered and (iii) the time, date and place at which such certificates will be
delivered (which time and date may be simultaneous with, but not earlier than,
the First Closing Date; and in such case the term "First Closing Date" shall
refer to the time and date of delivery of certificates for the Firm Common
Shares and the Optional Common Shares). Such time and date of delivery, if
subsequent to the First Closing Date, is called the "Second Closing Date" and
shall be determined by the Representative and shall not be earlier than three
(3) nor later than five (5) full Business Days (any day, other than a Saturday,
Sunday or legal holiday in the State of New York, on which banks are open for
business in New York City) after delivery of such notice of exercise. If any
Optional Common Shares are to be purchased, (a) each Underwriter agrees,
severally and not jointly, to purchase the number of Optional Common Shares
(subject to such adjustments to eliminate fractional shares as the
Representative may determine) that bears the same proportion to the total number
of Optional Common Shares to be purchased as the number of Firm Common Shares
set forth on Schedule A opposite the name of such Underwriter bears to the total
number of Firm Common Shares and (b) each Selling Stockholder agrees, severally
and not jointly, to sell the number of Optional Common Shares (subject to such
adjustments to eliminate fractional shares as the Representative may determine)
that bears the same proportion to the total number of Optional Common Shares to
be sold as the number of Optional Common Shares set forth in Schedule A opposite
the name of such Selling Stockholder bears to the total number of Optional
Common Shares. The Representative may cancel the option at any time prior to its
expiration by giving written notice of such cancellation to each of the Selling
Stockholders.
17
(d) Public Offering of the Common Shares. The Representative hereby advises
the Company and the Selling Stockholders that the Underwriters intend to offer
for sale to the public, as described in the Prospectus, their respective
portions of the Common Shares as soon after this Agreement has been executed as
the Representative, in their sole judgment, has determined is advisable and
practicable.
(e) Payment for the Common Shares. Payment for the Common Shares to be sold
by the Selling Stockholders shall be made at the First Closing Date (and, if the
Underwriters exercise their option to purchase Optional Common Shares, at the
Second Closing Date) by wire transfer of immediately available funds to the
Company as custodian for each of the Selling Stockholders under the respective
Custody Agreements.
It is understood that the Representative has been authorized, for its
own account and the accounts of the several Underwriters, to accept delivery of
and receipt for, and make payment of the purchase price for, the Firm Common
Shares and any Optional Common Shares the Underwriters have agreed to purchase.
The Representative, individually and not as the Representative of the
Underwriters, may (but shall not be obligated to) make payment for any Common
Shares to be purchased by any Underwriter whose funds shall not have been
received by the Representative by the First Closing Date or the Second Closing
Date, as the case may be, for the account of such Underwriter, but any such
payment shall not relieve such Underwriter from any of its obligations under
this Agreement.
Each Selling Stockholder hereby agrees that it will pay all stock
transfer taxes, stamp duties and other similar taxes, if any, payable upon the
sale or delivery of the Common Shares to be sold by such Selling Stockholder to
the several Underwriters, or otherwise in connection with the performance of
such Selling Stockholder's obligations hereunder.
(f) Delivery of the Common Shares. The Selling Stockholders shall deliver,
or cause to be delivered, to the Representative for the accounts of the several
Underwriters certificates for the Firm Common Shares to be sold by them at the
First Closing Date, against the irrevocable release of a wire transfer of
immediately available funds for the amount of the purchase price therefor. The
Selling Stockholders shall also deliver, or cause to be delivered, to the
Representative for the accounts of the several Underwriters, certificates for
the Optional Common Shares the Underwriters have agreed to purchase from them at
the First Closing Date or the Second Closing Date, as the case may be, against
the irrevocable release of a wire transfer of immediately available funds for
the amount of the purchase price therefor. The certificates for the Common
Shares shall be in definitive form and registered in such names and
denominations as the Representative shall have requested at least two full
business days prior to the First Closing Date (or the Second Closing Date, as
the case may be) and shall be made available for inspection on the business day
preceding the First Closing Date (or the Second Closing Date, as the case may
be) at a location in New York City, New York, as the Representative may
designate. Time shall be of the essence, and delivery on the date and at the
place specified in this Agreement is a further condition to the obligations of
the Underwriters.
18
(g) Delivery of Prospectus to the Underwriters. Not later than 12:00 p.m.
on the second business day following the date the Common Shares are first
released by the Underwriters for sale to the public, the Company shall deliver
or cause to be delivered, copies of the Prospectus in such quantities and at
such places as the Representative shall reasonably request.
SECTION 3. ADDITIONAL COVENANTS
A. Covenants of the Company. The Company further covenants and agrees with
each Underwriter as follows:
(a) Representative's Review of Proposed Amendments and Supplements. During
such period beginning on the date hereof and ending on the later of the First
Closing Date or such date, as in the reasonable and good faith opinion of
counsel for the Underwriters, the Prospectus is no longer required by the
Securities Act to be delivered in connection with sales by an Underwriter or
dealer (the "Prospectus Delivery Period"), prior to amending or supplementing
the Registration Statement (including any Rule 462(b) Registration Statement) or
the Prospectus (including any amendment or supplement through incorporation by
reference of any report filed under the Exchange Act), the Company shall furnish
to the Representative for review a copy of each such proposed amendment or
supplement, and the Company shall not file any such proposed amendment or
supplement to which the Representative reasonably objects in writing.
(b) Securities Act Compliance. During the Prospectus Delivery Period, the
Company shall promptly advise the Representative in writing (i) of the receipt
of any comments of, or requests for additional or supplemental information from,
the Commission, (ii) of the time and date of any filing of any post-effective
amendment to the Registration Statement or any amendment or supplement to any
preliminary prospectus or the Prospectus, (iii) of the time and date that any
post-effective amendment to the Registration Statement becomes effective and
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
thereto or of any order preventing or suspending the use of any preliminary
prospectus or the Prospectus, or of any proceedings to remove, suspend or
terminate from listing or quotation the Common Stock from any securities
exchange upon which it is listed for trading or included or designated for
quotation, or of the threatening or initiation of any proceedings for any of
such purposes. If the Commission shall enter any such stop order at any time,
the Company will use commercially reasonable efforts to obtain the lifting of
such order at the earliest possible moment. Additionally, the Company agrees
that it shall comply with the provisions of Rules 424(b), 430A and 434, as
applicable, under the Securities Act and will use its reasonable efforts to
confirm that any filings made by the Company under such Rule 424(b) were
received in a timely manner by the Commission.
(c) Amendments and Supplements to the Prospectus and Other Securities Act
Matters. If, during the Prospectus Delivery Period, any event shall occur or
condition exist as a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
or if in the opinion of the Representative or counsel for the Underwriters it is
otherwise necessary to amend or supplement the Prospectus to comply with law,
the Company agrees to promptly prepare (subject to Section 3(A)(a) hereof), file
with the Commission and furnish at its own expense to the Underwriters,
amendments or supplements to the Prospectus so
19
that the statements in the Prospectus as so amended or supplemented will not, in
the light of the circumstances when the Prospectus is delivered to a purchaser,
be misleading or so that the Prospectus, as amended or supplemented, will comply
with law.
(d) Copies of any Amendments and Supplements to the Prospectus. The Company
agrees to furnish the Representative, without charge, during the Prospectus
Delivery Period, as many copies of the Prospectus and any amendments and
supplements thereto (including any documents incorporated or deemed incorporated
by reference therein) as the Representative may reasonably request.
(e) Blue Sky Compliance. The Company shall cooperate with the
Representative and counsel for the Underwriters to qualify or register the
Common Shares for sale under (or obtain exemptions from the application of) the
state securities or blue sky laws of those jurisdictions designated by the
Representative, shall comply with such laws and shall continue such
qualifications, registrations and exemptions in effect so long as required for
the distribution of the Common Shares. The Company shall not be required to
qualify as a foreign corporation or to take any action that would subject it to
general service of process in any such jurisdiction where it is not presently
qualified or where it would be subject to taxation as a foreign corporation. The
Company will advise the Representative promptly of the suspension of the
qualification or registration of (or any such exemption relating to) the Common
Shares for offering, sale or trading in any jurisdiction or any initiation or
threat of any proceeding for any such purpose, and in the event of the issuance
of any order suspending such qualification, registration or exemption, the
Company shall use commercially reasonable efforts to obtain the withdrawal
thereof at the earliest possible moment.
(f) [Intentionally Omitted].
(g) Transfer Agent. The Company shall maintain, at its expense, a registrar
and transfer agent for the Common Stock.
(h) Earnings Statement. As soon as practicable, the Company will make
generally available to its security holders and to the Representative an
earnings statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 under
the Securities Act.
(i) Periodic Reporting Obligations. During the Prospectus Delivery Period,
the Company shall file, on a timely basis, with the Commission and the New York
Stock Exchange all reports and documents required to be filed under the Exchange
Act.
(j) Company to Provide Interim Financial Statements. Prior to the First
Closing Date, the Company will furnish the Underwriters, as soon as they have
been prepared by or are available to the Company, a copy of any unaudited
interim financial statements of the Company for any period subsequent to the
period covered by the most recent financial statements appearing in the
Registration Statement and the Prospectus.
(k) Agreement Not to Offer or Sell Additional Securities. During the period
commencing on the date hereof and ending on the 60th day following the date of
the Prospectus, neither the Company nor the Partnership will, without the prior
written consent of the Representative (which
20
consent may be withheld at the sole discretion of the Representative), directly
or indirectly, sell, offer, contract or grant any option to sell, pledge,
transfer or establish an open "put equivalent position" within the meaning of
Rule 16a-1(h) under the Exchange Act, or otherwise dispose of or transfer, or
announce the offering of, or file any registration statement under the
Securities Act in respect of, any shares of Common Stock or OP Units, options or
warrants to acquire shares of the Common Stock or OP Units or other securities
exchangeable or exercisable for or convertible into shares of Common Stock
(other than as contemplated by this Agreement with respect to the Common
Shares); provided, however, that the Company or the Partnership may issue shares
of Common Stock or OP Units or options to purchase shares of Common Stock or OP
Units, or Common Stock or OP Units upon exercise of options, (A) pursuant to any
stock option, stock bonus or other stock plan or arrangement described in the
Prospectus or (B) in connection with any acquisitions, joint ventures or similar
arrangements entered into in the normal course of the Company's or the
Partnership's operations, so long as the recipients of any such securities agree
not to sell or transfer such securities in a public market transaction during
the lock-up period.
(l) Future Reports to the Representative. To the extent unavailable on an
open-access public filing retrieval system, during the period of two (2) years
hereafter the Company will furnish to the Representative at 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, XX 00000: (i) as soon as practicable after the end of each
fiscal year, copies of the Annual Report of the Company containing the balance
sheet of the Company as of the close of such fiscal year and statements of
income, stockholders' equity and cash flows for the year then ended and the
opinion thereon of the Company's independent public or certified public
accountants; (ii) as soon as practicable after the filing thereof, copies of
each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q,
Current Report on Form 8-K or other report filed by the Company with the
Commission, the NASD or any securities exchange; and (iii) as soon as available,
copies of any report or communication of the Company mailed generally to holders
of its capital stock.
(m) No Manipulation of Price. The Company will not take, directly or
indirectly, any action designed to cause or result in, or that has constituted
or might reasonably be expected to constitute, the stabilization or manipulation
of the price of any securities of the Company.
21
(B) Covenants of the Selling Stockholders. Each Selling Stockholder,
individually and not jointly, further covenants and agrees with
each Underwriter:
(a) Agreement Not to Offer or Sell Additional Securities. Such Selling
Stockholder will not, without the prior written consent of the Representative
(which consent may be withheld in its sole discretion), directly or indirectly,
sell, offer, contract or grant any option to sell (including without limitation
any short sale), pledge, transfer, establish an open "put equivalent position"
within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose
of any shares of Common Stock, options or warrants to acquire shares of Common
Stock, or securities exchangeable or exercisable for or convertible into shares
of Common Stock currently or hereafter owned either of record or beneficially
(as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended)
by the undersigned, or publicly announce the undersigned's intention to do any
of the foregoing, for a period commencing on the date hereof and continuing
through the close of trading on the date 180 days after the date of the
Prospectus; provided, however, that nothing herein shall prohibit transfers to
an Affiliate (as defined in Rule 405 of the Securities Act) of such Selling
Stockholder that agrees in writing to be bound by the foregoing restrictions.
Any such transfer shall not release such Selling Stockholder of its obligations
under this Agreement.
(b) Delivery of Forms W-8 and W-9. To deliver to the Representative prior
to the First Closing Date a properly completed and executed United States
Treasury Department Form W-8 (if the Selling Stockholder is a non-United States
person) or Form W-9 (if the Selling Stockholder is a United States Person).
C. Waiver. The Representative, on behalf of the several Underwriters, may,
in its sole discretion, waive in writing the performance by the Company or any
Selling Stockholder of any one or more of the foregoing covenants or extend the
time for their performance.
SECTION 4. PAYMENT OF EXPENSES
The Selling Stockholders, on a pro rata basis, agree to pay all costs,
fees and expenses incurred in connection with the performance of their
obligations hereunder and in connection with the transactions contemplated
hereby, including without limitation (i) all expenses incident to the issuance
and delivery of the Common Shares (including all printing and engraving costs),
(ii) all fees and expenses of the registrar and transfer agent of the Common
Stock, (iii) all necessary issue, transfer and other stamp taxes in connection
with the issuance and sale by the Company of the Common Shares to the
Underwriters, (iv) all fees and expenses of the Company's counsel and Selling
Stockholders' counsel, independent public or certified public accountants and
other advisors, (v) all costs and expenses incurred in connection with the
preparation, printing, filing, shipping and distribution of the Registration
Statement (including financial statements, exhibits, schedules, consents and
certificates of experts), each preliminary prospectus and the Prospectus, and
all amendments and supplements thereto, and this Agreement, (vi) all filing
fees, attorneys' fees and expenses incurred by the Company or the Underwriters
in connection with qualifying or registering (or obtaining exemptions from the
qualification or registration of) all or any part of the Common Shares for offer
and sale under the state securities or blue sky laws, and, if requested by the
Representative, preparing and printing a "Blue Sky Survey" or memorandum, and
any supplements thereto, advising the Underwriters of
22
such qualifications, registrations and exemptions, (vii) the filing fees
incident to, and the reasonable fees and expenses of counsel for the
Underwriters in connection with, the NASD's review and approval of the
Underwriters' participation in the offering and distribution of the Common
Shares, and (viii) all other fees, costs and expenses referred to in Item 14 of
Part II of the Registration Statement, to the extent not already paid. Except as
provided in this Section 4, Section 6, Section 8 and Section 9 hereof, the
Underwriters shall pay their own expenses, including the fees and disbursements
of their counsel.
The Selling Stockholders each further agree with each Underwriter to
pay (directly or by reimbursement) all taxes incident to the sale and delivery
of the Common Shares to be sold by such Selling Stockholder to the Underwriters
hereunder.
This Section 4 shall not affect or modify any separate, valid agreement
relating to the allocation of payment of expenses between the Company, on the
one hand, and one or more Selling Stockholders, on the other hand.
SECTION 5. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS
The obligations of the several Underwriters to purchase and pay for the
Common Shares as provided herein on the First Closing Date and, with respect to
the Optional Common Shares, the Second Closing Date, shall be subject to the
accuracy of the representations and warranties on the part of the Company, the
Partnership and the Selling Stockholders set forth herein, respectively, as of
the date hereof and as of the First Closing Date as though then made and, with
respect to the Optional Common Shares, as of the Second Closing Date as though
then made, to the performance by the Company and the Selling Stockholders of
their respective covenants and other obligations hereunder, and to each of the
following additional conditions:
(a) Accountants' Comfort Letter. On the date hereof, the Representative
shall have received from Ernst & Young LLP, independent public or certified
public accountants for the Company, a letter dated the date hereof addressed to
the Underwriters, in form and substance reasonably satisfactory to the
Representative, containing statements and information of the type ordinarily
included in accountant's "comfort letters" to underwriters, delivered according
to Statement of Auditing Standards No. 72 (or any successor bulletin), with
respect to the audited and unaudited financial statements, if any, and certain
financial information contained in the Registration Statement and the
Prospectus.
(b) Compliance with Registration Requirements; No Stop Order; No Objection
from NASD. For the period from and after effectiveness of this Agreement and
prior to the First Closing Date and, with respect to the Optional Common Shares,
the Second Closing Date:
(i) the Company shall have filed the Prospectus with the Commission
(including the information required by Rule 430A under the Securities Act)
in the manner and within the time period required by Rule 424(b) under the
Securities Act; or the Company shall have filed a post-effective amendment
to the Registration Statement containing the information required by such
Rule 430A, and such post-effective amendment shall have become effective;
23
(ii) no stop order suspending the effectiveness of the Registration
Statement, any Rule 462(b) Registration Statement, or any post-effective
amendment to the Registration Statement, shall be in effect and no
proceedings for such purpose shall have been instituted or, to the
Company's knowledge, threatened by the Commission; and
(iii) the NASD shall have raised no objection to the fairness and
reasonableness of the underwriting terms and arrangements.
(c) No Material Adverse Change. For the period from and after the date of
this Agreement and prior to the First Closing Date and, with respect to the
Optional Common Shares, the Second Closing Date, in the judgment of the
Representative there shall not have occurred any Material Adverse Change.
(d) Opinions of Counsel for the Company and Partnership. On each of the
First Closing Date and the Second Closing Date, if any, the Representative shall
have received (i) the favorable opinion of Paul, Hastings, Xxxxxxxx & Xxxxxx
LLP, counsel for the Company, dated as of such First Closing Date and the Second
Closing Date, if any, substantially in the form attached as Exhibit A-1 and (ii)
the favorable opinion of Berliner, Xxxxxxxx & Xxxx L.L.P., Maryland counsel to
the Company, dated as of such First Closing Date and the Second Closing Date, if
any, substantially in the form attached as Exhibit A-2, and which shall
expressly state that the counsel for the Representative may rely on such opinion
as to matters of Maryland law.
(e) Opinion of Counsel for the Underwriters. On each of the First Closing
Date and the Second Closing Date, if any, the Representative shall have received
the favorable opinion of Hunton & Xxxxxxxx LLP, counsel for the Underwriters,
dated as of such First Closing Date and the Second Closing Date, if any, with
respect to the matters customarily addressed in such transactions.
(f) Officers' Certificate. On each of the First Closing Date and the Second
Closing Date, if any, the Representative shall have received a written
certificate executed by the Chief Executive Officer of the Company and the Chief
Financial Officer or Chief Accounting Officer of the Company, dated as of such
Closing Date, to the effect set forth in subsections (b)(ii) of this Section 5,
and further to the effect that:
(i) for the period from and after the date of this Agreement and prior
to such Closing Date, there has not occurred any Material Adverse Change;
(ii) the representations, warranties and covenants of the Company set
forth in Section 1(A) of this Agreement are true and correct with the same
force and effect as though expressly made on and as of such Closing Date;
(iii) the Company has complied with all the agreements hereunder and
satisfied all the conditions on its part to be performed or satisfied
hereunder at or prior to such Closing Date; and
(iv) such other matters as may be reasonably requested.
24
(g) Bring-Down Comfort Letter. On each of the First Closing Date and the
Second Closing Date, if any, the Representative shall have received from Ernst &
Young LLP, independent public or certified public accountants for the Company, a
letter dated such date, in form and substance satisfactory to the
Representative, to the effect that they reaffirm the statements made in the
letter furnished by them pursuant to subsection (a) of this Section 5, except
that the specified date referred to therein for the carrying out of procedures
shall be no more than three business days prior to the First Closing Date or
Second Closing Date, as the case may be.
(h) Opinion of Counsel for the Selling Stockholders. On each of the First
Closing Date and the Second Closing Date, if any, the Representative shall have
received the favorable opinion of each of Debevoise & Xxxxxxxx LLP and Day,
Xxxxx & Xxxxxx LLP, each being the counsel for one or more Selling Stockholders,
dated as of such Closing Date, substantially in the form attached as Exhibit B.
(i) Selling Stockholders' Certificate. On each of the First Closing Date
and the Second Closing Date, if any, the Representative shall receive a written
certificate executed by each Selling Stockholder, dated as of such First or
Second Closing Date, to the effect that:
(i) the representations, warranties and covenants of such Selling
Stockholder set forth in this Agreement are true and correct with the same
force and effect as though expressly made by such Selling Stockholder on
and as of such Closing Date;
(ii) such Selling Stockholder has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied at or
prior to such First or Second Closing Date; and
(iii) such other matters as may be reasonably requested.
(j) Selling Stockholders' Documents. On the date hereof, the Company and
the Selling Stockholders shall have furnished for review by the Representative
such information, certificates and documents as the Representative may
reasonably request.
(k) Lock-Up Agreement from Certain Security Holders of the Company. On or
prior to the date hereof, the Company shall have furnished to the Representative
an agreement in the form of Exhibit C hereto from each trustee and executive
officer of the Company, and such agreement shall be in full force and effect on
each of the First Closing Date and the Second Closing Date, if any.
(l) Additional Documents. On or before each of the First Closing Date and
the Second Closing Date, if any, the Representative and counsel for the
Underwriters shall have received such information, documents and opinions as
they may reasonably require for the purposes of enabling them to pass upon the
issuance and sale of the Common Shares as contemplated herein, or in order to
evidence the accuracy of any of the representations and warranties, or the
satisfaction of any of the conditions or agreements, herein contained.
If any condition specified in this Section 5 is not satisfied when and
as required to be satisfied, this Agreement may be terminated by the
Representative by notice to the Company and the Selling Stockholders at any time
on or prior to the First Closing Date and, with respect to the
25
Optional Common Shares, at any time prior to the Second Closing Date, which
termination shall be without liability on the part of any party to any other
party, except that Section 4, Section 6, Section 7 and Section 8 shall at all
times be effective and shall survive such termination.
SECTION 6. REIMBURSEMENT OF UNDERWRITERS' EXPENSES
(a) Reimbursement by the Company. If this Agreement is terminated by the
Representative pursuant to Sections 5 (other than solely as a result of failure
to satisfy the conditions set forth in Section 5(h), -(i) or -(j)) or 10(i)
hereof or if the sale to the Underwriters of the Common Shares on the First
Closing Date is not consummated because of any refusal, inability or failure on
the part of the Company to perform any agreement herein or to comply with any
provision hereof, the Company agrees to reimburse the Representative and the
other Underwriters (or such underwriters as have terminated this Agreement with
respect to themselves), severally, upon demand for all out-of-pocket expenses
that shall have been reasonably incurred by the Representative and the
Underwriters in connection with the proposed purchase and the offering and sale
of the Common Shares, including but not limited to fees and disbursements of
counsel, printing expenses, travel expenses, postage, facsimile and telephone
charges.
(b) Reimbursement by the Selling Stockholders. If this Agreement is
terminated by the Representative solely as a result of the failure of one or
more Selling Stockholders to satisfy the conditions set forth in Section 5(h),
-(i) or -(j), or if the sale to the Underwriters of the Common Shares on the
First Closing Date is not consummated solely because of any refusal, inability
or failure on the part of such Selling Stockholders to perform any agreement
herein or to comply with any provision hereof, each such Selling Stockholder
severally, and not jointly, agrees to reimburse the Representative and the other
Underwriters (or such underwriters as have terminated this Agreement with
respect to themselves), upon demand for such Selling Stockholder's pro-rata
share of all out-of-pocket expenses that shall have been reasonably incurred by
the Representative and the Underwriters in connection with the proposed purchase
and the offering and sale of the Common Shares, including but not limited to
fees and disbursements of counsel, printing expenses, travel expenses, postage,
facsimile and telephone charges.
SECTION 7. INDEMNIFICATION
(a) Indemnification of the Underwriters by the Company. The Company agrees
(i) to indemnify and hold harmless each Underwriter, its officers and employees,
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the Securities Act or Section 20(a) of the Exchange Act against
any loss, claim, damage, liability or expense, as incurred, to which such
Underwriter or such controlling person may become subject, under the Securities
Act, the Exchange Act or other federal or state statutory law or regulation, or
at common law or otherwise (including in settlement of any litigation, if such
settlement is effected with the written consent of the Company), insofar as such
loss, claim, damage, liability or expense (or actions in respect thereof as
contemplated below) arises out of or is based (A) upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, or any amendment thereto, including any information deemed to be a
part thereof pursuant to Rule 430A or Rule 434 under the Securities Act, or the
omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements
26
therein not misleading; or (B) upon any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus (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; and (ii) to reimburse
each Underwriter and each such indemnified person for any and all expenses
(including the reasonable fees and disbursements of counsel chosen by the
Representative) as such expenses are reasonably incurred by such Underwriter or
such indemnified person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or
action; provided, however, that the foregoing indemnity agreement shall not
apply to any loss, claim, damage, liability or expense to the extent, but only
to the extent, arising out of or based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by the
Representative (or its counsel) expressly for use in the Registration Statement,
any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto). The indemnity agreement set forth in this Section 7(a) shall be in
addition to any liabilities that the Company may otherwise have.
(b) Indemnification of the Underwriters by the Selling Stockholders. Each
of the Selling Stockholders severally, and not jointly, agrees (i) to indemnify
and hold harmless each Underwriter, its officers and employees, and each person,
if any, who controls any Underwriter within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act against any loss, claim,
damage, liability or expense, as incurred, to which such Underwriter or such
controlling person may become subject, under the Securities Act, the Exchange
Act or other federal or state statutory law or regulation, or at common law or
otherwise (including in settlement of any litigation, if such settlement is
effected with the written consent of the Company), insofar as such loss, claim,
damage, liability or expense (or actions in respect thereof as contemplated
below) arises out of or is based (A) upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, or any
amendment thereto, including any information deemed to be a part thereof
pursuant to Rule 430A or Rule 434 under the Securities Act, 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 (B) upon any untrue
statement or alleged untrue statement of a material fact contained in the
Prospectus (or any amendment or supplement 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; and (ii) to reimburse each
Underwriter and each such indemnified person for any and all expenses (including
the reasonable fees and disbursements of counsel chosen by the Representative)
as such expenses are reasonably incurred by such Underwriter or such indemnified
person in connection with investigating, defending, settling, compromising or
paying any such loss, claim, damage, liability, expense or action; provided,
however, that each Selling Stockholder shall only be subject to such liability
with respect to subsections (A) and (B) above to the extent that the untrue or
alleged untrue statement or the omission or alleged omission arises in reliance
upon and in conformity with written information relating to such Selling
Stockholder furnished by such Selling Stockholder expressly for use in such
documents; and provided, further, that the foregoing indemnity agreement shall
not apply to any loss, claim, damage, liability or expense to the extent, but
only to the extent, arising out of or based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by the
Representative (or its counsel) expressly
27
for use in the Registration Statement, any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto). Notwithstanding any of the
foregoing to the contrary, (1) each Underwriter agrees that the sole remedy of
the Underwriter from and after the First Closing (or the Second Closing, if any,
with respect to the Optional Common Shares) shall be pursuant to this Section
7(b) and Section 8, if applicable, (2) the maximum liability of each Selling
Stockholder under this Section 7(b) shall be limited to an amount equal to the
gross proceeds, net of underwriting commissions and discounts but before
expenses, to such Selling Stockholder from the sale of its Common Shares
hereunder and (3) the Company and each of the Underwriters agree that any Claims
of the Underwriters against the Selling Stockholders for breach of contract,
indemnification, reimbursement or advancement of expenses or otherwise pursuant
to subsections (A) or (B) of this Section 7(b) or subsection (C) of this Section
7(b) (but only if, and to the extent that, any Claim brought under subsection
(C) relates solely to the breach of the representation and warranty made by the
Selling Stockholders in Section 1(B)(a) of this Agreement) shall first be sought
by such Underwriters to be satisfied in full by the Company and shall be
satisfied by the Selling Stockholders only to the extent the Company shall not
have paid such claim in full or otherwise satisfied the indemnification
obligations hereunder.
(c) Indemnification of the Company, its Trustees and Officers and the
Selling Stockholders. Each Underwriter agrees severally, and not jointly, to
indemnify and hold harmless the Company, each of its trustees and officers, the
Selling Stockholders and each person, if any, who controls the Company or any
Selling Stockholder within the meaning of Section 15 of the Securities Act
Section 20(a) of Exchange Act, against any loss, claim, damage, liability or
expense, as incurred, to which the Company, or any such trustee, officer,
Selling Stockholder or controlling person may become subject, under the
Securities Act, the Exchange Act, or other federal or state statutory law or
regulation, or at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of such
Underwriter, which consent shall not be unreasonably withheld), insofar as such
loss, claim, damage, liability or expense (or actions in respect thereof as
contemplated below) arises out of or is based upon any untrue or alleged untrue
statement of a material fact contained in the Registration Statement, any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), or arises out of or is based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in the Registration Statement, any preliminary
prospectus, or the Prospectus (or any amendment or supplement thereto), in
reliance upon and in conformity with written information furnished to the
Company (or its counsel) by the Representative (or its counsel) expressly for
use therein; and to reimburse the Company, or any such trustee, officer, Selling
Stockholder or controlling person for any legal and other expense reasonably
incurred by the Company, or any such trustee, officer, Selling Stockholder or
controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or
action. The Company and each of the Selling Stockholders hereby acknowledge that
the only information that the Underwriters have furnished to the Company and the
Selling Stockholders expressly for use in the Registration Statement, any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) are the statements set forth in the second and third sentences of
paragraph 3, the third and fourth sentences of paragraph 11 and paragraphs 6, 9
and 10 in the section entitled "Underwriting" in the Prospectus; and the
Underwriters confirm that such
28
statements are correct. The indemnity agreement set forth in this Section 7(c)
shall be in addition to any liabilities that each Underwriter may otherwise
have.
(d) Notifications and Other Indemnification Procedures. Promptly after
receipt by an indemnified party under this Section 7 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party under this Section 7, notify
the indemnifying party in writing of the commencement thereof, but the omission
so to notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party for contribution or otherwise than under
the indemnity agreement contained in this Section 7 to the extent it is not
prejudiced as a proximate result of such failure. In case any such action is
brought against any indemnified party and such indemnified party seeks or
intends to seek indemnity from an indemnifying party, the indemnifying party
will be entitled to participate in, and, to the extent that it shall elect,
jointly with all other indemnifying parties similarly notified, by written
notice delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof with counsel
reasonably satisfactory to such indemnified party; provided, however, if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that a conflict may arise between the positions of the indemnifying party and
the indemnified party in conducting the defense of any such action or that there
may be legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assume such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of such indemnifying
party's election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 7 for any legal or other expenses
subsequently and reasonably incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding sentence
(it being understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel (together with local
counsel), approved by the indemnifying party (the Representative in the case of
Section 7(c) and Section 8), representing the indemnified parties who are
parties to such action) or (ii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action, in each of which cases the reasonable fees and expenses of counsel shall
be at the expense of the indemnifying party.
(e) Settlements. The indemnifying party under this Section 7 shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
against any loss, claim, damage, liability or expense by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by Section
7(d) hereof, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such indemnifying
party of the
29
aforesaid request and (ii) such indemnifying party shall not have responded to
the aforesaid request or reimbursed the indemnified party in accordance with
such request prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party (which shall not be
unreasonably withheld), effect any settlement, compromise or consent to the
entry of judgment in any pending or threatened action, suit or proceeding in
respect of which any indemnified party is or could have been a party and
indemnity was or could have been sought hereunder by such indemnified party,
unless such settlement, compromise or consent includes an unconditional release
of such indemnified party from all liability on claims that are the subject
matter of such action, suit or proceeding.
SECTION 8. CONTRIBUTION
If the indemnification provided for in Section 7 is for any reason held
to be unavailable to or otherwise insufficient to hold harmless an indemnified
party in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount paid or payable by such indemnified party, as incurred, as a
result of any losses, claims, damages, liabilities or expenses referred to
therein (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Selling Stockholders, on the one hand,
and the Underwriters, on the other hand, from the offering of the Common Shares
pursuant to this Agreement or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company and the Selling Stockholders, on the one
hand, and the Underwriters, on the other hand, in connection with the statements
or omissions or inaccuracies in the representations and warranties herein which
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative benefits received by
the Company and the Selling Stockholders, on the one hand, and the Underwriters,
on the other hand, in connection with the offering of the Common Shares pursuant
to this Agreement shall be deemed to be in the same respective proportions as
the total net proceeds from the offering of the Common Shares pursuant to this
Agreement (before deducting expenses) received by the Company and the Selling
Stockholders, and the total underwriting discount received by the Underwriters,
in each case as set forth on the front cover page of the Prospectus (or, if Rule
434 under the Securities Act is used, the corresponding location on the Term
Sheet) bear to the aggregate initial public offering price of the Common Shares
as set forth on such cover. The relative fault of the Company and the Selling
Stockholders, on the one hand, and the Underwriters, on the other hand, shall be
determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact or any such inaccurate or alleged inaccurate
representation or warranty relates to information supplied by the Company or the
Selling Stockholders, on the one hand, or the Underwriters, on the other hand,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in Section 7(c), any legal or
other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim. The provisions set forth in
Section 7(c) with respect to notice of commencement of any action shall apply if
a claim for
30
contribution is to be made under this Section 8; provided, however, that no
additional notice shall be required with respect to any action for which notice
has been given under Section 7(c) for purposes of indemnification.
The Company, the Selling Stockholders and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 8
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in this Section 8.
Notwithstanding the provisions of this Section 8, no Underwriter shall
be required to contribute any amount in excess of the underwriting commissions
received by such Underwriter in connection with the Common Shares underwritten
by it and distributed to the public. 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 Underwriters' obligations to contribute
pursuant to this Section 8 are several, and not joint, in proportion to their
respective underwriting commitments as set forth opposite their names in
Schedule A. The obligations of the Selling Stockholders to contribute pursuant
to this Section 8 are several, and not joint, and in proportion to the gross
proceeds, net of underwriting commissions and discounts, to be received by the
respective Selling Stockholders in respect of the Firm Common Shares to be sold
as set forth opposite each Selling Stockholder's name in Schedule A. For
purposes of this Section 8, each officer and employee of an Underwriter and each
person, if any, who controls an Underwriter within the meaning of Section 15 of
the Securities Act or Section 20(a) of the Exchange Act shall have the same
rights to contribution as such Underwriter, and each trustee and officer of the
Company, and each person, if any, who controls the Company with the meaning of
Section 15 of the Securities Act or Section 20(a) of the Exchange Act shall have
the same rights to contribution as the Company. Notwithstanding the foregoing,
no Selling Stockholder shall be obligated to make contributions hereunder which
in the aggregate exceed the amount for which such Selling Stockholder would have
been liable pursuant to Section 7(b) of this Agreement.
Notwithstanding the provisions of this Section 8, the liability of each
Selling Stockholder under this Section 8 shall be limited to an amount equal to
the gross proceeds, net of underwriting commissions and discounts but before
expenses, to such Selling Stockholder from the sale of their Common Shares
hereunder.
SECTION 9. DEFAULT OF ONE OR MORE OF THE SEVERAL UNDERWRITERS
If, on the First Closing Date or the Second Closing Date, as the case
may be, any one or more of the several Underwriters shall fail or refuse to
purchase Common Shares that it or they have agreed to purchase hereunder on such
date, and the aggregate number of Common Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase does not
exceed 10% of the aggregate number of the Common Shares to be purchased on such
date, the other Underwriters shall be obligated, severally, in the proportions
that the number of Firm Common Shares set forth opposite their respective names
on Schedule A bears to the aggregate number of Firm Common Shares set forth
opposite the names of all such non-defaulting Underwriters, or in such other
proportions as may be specified by the Representative with the
31
consent of the non-defaulting Underwriters, to purchase the Common Shares which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date. If, on the First Closing Date or the Second Closing Date,
as the case may be, any one or more of the Underwriters shall fail or refuse to
purchase Common Shares and the aggregate number of Common Shares with respect to
which such default occurs exceeds 10% of the aggregate number of Common Shares
to be purchased on such date, and arrangements satisfactory to the
Representative and the Company for the purchase of such Common Shares are not
made within 72 hours after such default, this Agreement shall terminate without
liability of any party (other than the defaulting Underwriter who shall remain
liable for any damages incurred by the Company, Selling Stockholder or other
Underwriter that are occasioned by its breach or default hereunder) to any other
party except that the provisions of Section 4, Section 6, Section 7 and Section
8 shall at all times be effective and shall survive such termination. In any
such case either the Representative or the Company shall have the right to
postpone the First Closing Date or the Second Closing Date, as the case may be,
but in no event for longer than seven days in order that the required changes,
if any, to the Registration Statement and the Prospectus or any other documents
or arrangements may be effected.
As used in this Agreement, the term "Underwriter" shall be deemed to
include any person substituted for a defaulting Underwriter under this Section
9. Any action taken under this Section 9 shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
SECTION 10. TERMINATION OF THIS AGREEMENT
Prior to the First Closing Date, this Agreement may be terminated by
the Representative by written notice given to the Company and the Selling
Stockholders if at any time (i) trading or quotation of the Company's Common
Stock shall have been suspended or limited by the Commission or by the NYSE, or
trading in securities generally on the New York Stock Exchange shall have been
suspended or limited, or minimum or maximum prices shall have been generally
established on such Exchange; (ii) a general banking moratorium shall have been
declared by any of federal or New York State authorities; (iii) there shall have
occurred any outbreak or escalation of national or international hostilities or
any crisis or calamity, or any change in the United States or international
financial markets, as in the judgment of the Representative is material and
adverse and makes it impracticable to proceed with the offering or the delivery
of the Common Shares in the manner and on the terms described in the Prospectus.
Any termination pursuant to this Section 10 shall be without liability on the
part of (a) the Company or the Selling Stockholders to any Underwriter, except
that the Company and the Selling Stockholders shall be obligated to reimburse
the expenses of the Representative and the Underwriters as provided for in
Sections 4 and 6 hereof, (b) any Underwriter to the Company or the Selling
Stockholders, or (c) of any party hereto to any other party except that the
provisions of Section 7 and Section 8 shall at all times be effective and shall
survive such termination.
32
SECTION 11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY
The respective indemnities, agreements, representations, warranties and
other statements of the Company, of its officers, of the Partnership, of the
Selling Stockholders and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter or the Company or the
Partnership or any of its or their partners, officers, trustees or directors or
any controlling person, or the Selling Stockholders, as the case may be, and
will survive delivery of and payment for the Common Shares sold hereunder and
any termination of this Agreement; provided, however, that the covenant of the
Selling Stockholders in Section 3(B)(a) hereof shall not survive any such
termination of the Agreement or failure of the Common Shares to have been
purchased and sold by the First Closing Date.
SECTION 12. NOTICES
All communications hereunder shall be in writing and shall be mailed,
hand delivered or telecopied and confirmed to the parties hereto as follows:
If to the Representative:
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 000-000-0000
Attention: General Counsel
with a copy (which shall not constitute notice) to:
Hunton & Xxxxxxxx LLP
Riverfront Plaza, East Tower
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Facsimile: 804-788-8218
Attention: Xxxxx Xxxxxx, Esq.
If to the Company:
Acadia Realty Trust
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Acadia Realty Trust
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx, Esq.
with a copy (which shall not constitute notice) to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
00 X. 00xx Xxxxxx
00
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 000-000-0000
Attention: Xxxx Xxxxxxxxxxx, Esq.
If to the Selling Stockholders:
Yale University
Yale Investments Office
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxx, XX 00000-0000
Att'n: Xxxx Xxxxxx, Director
Yale University Retirement Plan for Staff Employees
c/o Yale University, as Administrator
Yale Investments Office
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxx, XX 00000-0000
Att'n: Xxxx Xxxxxx, Director
with a copy to:
Debevoise & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx, Esq.
Xxxx Xxxxxxx
RD Capital, Inc.
000 0xx Xxxxxx - 0xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile No.: 000-000-0000
with a copy to:
Day, Xxxxx & Xxxxxx LLP
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: 617-345-4745
Attention: Xxxxxxx X. Xxxxx, Esq.
Any party hereto may change the address for receipt of communications
by giving written notice to the others.
34
SECTION 13. SUCCESSORS
This Agreement will inure to the benefit of and be binding upon the
parties hereto, including any substitute Underwriters pursuant to Section 9
hereof, and to the benefit of the employees, officers, trustees and directors
and controlling persons referred to in Section 7 and Section 8 hereof, and in
each case their respective successors, and personal representatives, and no
other person will have any right or obligation hereunder. The term "successors"
shall not include any purchaser of the Common Shares as such from any of the
Underwriters merely by reason of such purchase.
SECTION 14. PARTIAL UNENFORCEABILITY
The invalidity or unenforceability of any Section, paragraph or
provision of this Agreement shall not affect the validity or enforceability of
any other Section, paragraph or provision hereof. If any Section, paragraph or
provision of this Agreement is for any reason determined to be invalid or
unenforceable, there shall be deemed to be made such minor changes (and only
such minor changes) as are necessary to make it valid and enforceable.
SECTION 15. GOVERNING LAW PROVISIONS
(a) Governing Law Provisions. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed in such state.
(b) Consent to Jurisdiction. Any legal suit, action or proceeding arising
out of or based upon this Agreement or the transactions contemplated hereby
("Related Proceedings") may be instituted in the federal courts of the United
States of America located in New York City or the courts of the State of New
York located in New York City (collectively, the "Specified Courts"), and each
party irrevocably submits to the exclusive jurisdiction (except for proceedings
instituted in regard to the enforcement of a judgment of any such court (a
"Related Judgment"), as to which such jurisdiction is non-exclusive, of such
courts in any such suit, action or proceeding. Service of any process, summons,
notice or document by mail to such party's address set forth above shall be
effective service of process for any suit, action or other proceeding brought in
any such court. The parties irrevocably and unconditionally waive any objection
to the laying of venue of any suit, action or other proceeding in the Specified
Courts and irrevocably and unconditionally waive and agree not to plead or claim
in any such court that any such suit, action or other proceeding brought in any
such court has been brought in an inconvenient forum.
SECTION 16. FAILURE OF ONE OR MORE OF THE SELLING STOCKHOLDERS
TO SELL AND DELIVER COMMON SHARES
If one or more of the Selling Stockholders shall fail to sell and
deliver to the Underwriters the Common Shares to be sold and delivered by such
Selling Stockholders at the First Closing Date pursuant to this Agreement, then
the Underwriters may at their option, by written notice from the Representative
to the Company and the Selling Stockholders, either (i) terminate this Agreement
without any liability on the part of any Underwriter or, except as provided in
Sections 4, 6, 7 and 8 hereof, the Company or the Selling Stockholders, or (ii)
purchase the
35
shares which the other Selling Stockholders have agreed to sell and deliver in
accordance with the terms hereof. If one or more of the Selling Stockholders
shall fail to sell and deliver to the Underwriters the Common Shares to be sold
and delivered by such Selling Stockholders pursuant to this Agreement at the
First Closing Date or the Second Closing Date, then the Underwriters shall have
the right, by written notice from the Representative to the Company and the
Selling Stockholders, to postpone the First Closing Date or the Second Closing
Date, as the case may be, but in no event for longer than seven days in order
that the required changes, if any, to the Registration Statement and the
Prospectus or any other documents or arrangements may be effected.
SECTION 17. GENERAL PROVISIONS
This Agreement constitutes the entire agreement of the parties to this
Agreement and supersedes all prior written or oral and all contemporaneous oral
agreements, understandings and negotiations with respect to the subject matter
hereof. This Agreement may be executed in two or more counterparts, each one of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. This Agreement may not be amended or
modified unless in writing by all of the parties hereto, and no condition herein
(express or implied) may be waived unless waived in writing by each party whom
the condition is meant to benefit. The Table of Contents and the Section
headings herein are for the convenience of the parties only and shall not affect
the construction or interpretation of this Agreement.
Each of the parties hereto acknowledges that it is a sophisticated
business person who was adequately represented by counsel during negotiations
regarding the provisions hereof, including, without limitation, the
indemnification provisions of Section 7 hereof and the contribution provisions
of Section 8 hereof, and is fully informed regarding said provisions. Each of
the parties hereto further acknowledges that the provisions of Sections 7 and 8
hereof fairly allocate the risks in light of the ability of the parties to
investigate the Company, its affairs and its business in order to assure that
adequate disclosure has been made in the Registration Statement, any preliminary
prospectus and the Prospectus (and any amendments and supplements thereto), as
required by the Securities Act and the Exchange Act.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company, the Selling Stockholders and the
several Underwriters set forth in or made pursuant to this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation, or statement as to the results thereof, made by or on behalf of
any Underwriter, the officers or employees of any Underwriter, any person
controlling any Underwriter, the Company, the officers or employees of the
Company, or any person controlling the Company, any Selling Stockholder or any
person controlling such Selling Stockholder, (ii) acceptance of the Common
Shares and payment for them hereunder and (iii) termination of this Agreement.
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the Selling
Stockholders, the Underwriters, the Underwriters' officers and employees, any
controlling persons referred to herein, the Company's trustees and the Company's
officers and their respective successors and assigns, all as and to the
36
extent provided in this Agreement, and no other person shall acquire or have any
right under or by virtue of this Agreement. The term "successors and assigns"
shall not include a purchaser of any of the Common Shares from any of the
several Underwriters merely because of such purchase.
[Signatures on the Following Page]
37
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company the enclosed copies hereof,
whereupon this instrument, along with all counterparts hereof, shall become a
binding agreement in accordance with its terms.
Very truly yours,
ACADIA REALTY TRUST
By: /s/ Xxxxxx Xxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxx
Title: Senior Vice President
ACADIA REALTY LIMITED PARTNERSHIP
By: ACADIA REALTY TRUST
its sole general partner
By: /s/ Xxxxxx Xxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxx
Title: Senior Vice President
YALE UNIVERSITY
By: /s/ Xxxxxx Xxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney-in-Fact acting on behalf of
Yale University
THE YALE UNIVERSITY RETIREMENT
PLAN FOR STAFF EMPLOYEES
By: /s/ Xxxxxx Xxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney-in-Fact acting on behalf of
The Yale University Retirement Plan For
Staff Employees
XXXX XXXXXXX
By: /s/ Xxxxxx Xxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney-in-Fact acting on behalf of
Xxxx Xxxxxxx
38
The foregoing Underwriting Agreement is hereby confirmed and accepted
by the Representative in New York, New York, as of the date first above written.
CITIGROUP GLOBAL MARKETS INC.
Acting as Representative of the
several Underwriters named in
the attached Schedule B.
By: /s/ Xxxxx Xxxxxxxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxxxxxxx
Title: Vice President
39
SCHEDULE A
----------
Number of Firm
Common Shares Maximum Number of
to be Optional Common
Selling Stockholder Sold Shares to be Sold
Yale University 3,435,212 564,316
The Yale University Retirement Plan For Staff
Employees 164,788 27,070
Xxxx Xxxxxxx 1,400,000 158,614
---------------- ---------------------
5,000,000 750,000
================ =====================
A-1
SCHEDULE B
Number of Number of
Firm Common Optional Common
Underwriters Shares Shares to be
to be Purchased Purchased
Citigroup Global Markets Inc................... 4,000,000 600,000
RBC Capital Markets Corporation................ 1,000,000 150,000
--------------------------------------
Total.................................. 5,000,000 750,000
======================================
B-1
SCHEDULE C
----------
ATTORNEYS-IN-FACT FOR THE SELLING STOCKHOLDERS
Selling Stockholder Attorney-in-Fact
------------------- ----------------
Yale University Xxxxxxx X. Xxxxxxxxx
Xxxxxx Xxxxxxx
The Yale University Retirement
Plan For Staff Employees Xxxxxxx X. Xxxxxxxxx
Xxxxxx Xxxxxxx
Xxxx Xxxxxxx Xxxxxxx X. Xxxxxxxxx
Xxxxxx Xxxxxxx
C-1
EXHIBIT A-1
-----------
Form of Opinion of Issuer Counsel
Opinion of counsel for the Company to be delivered pursuant to Section 5(d) of
the Underwriting Agreement.
For the purpose of this opinion, unless otherwise noted, the term "subsidiary"
or "subsidiaries" includes the Partnership.
References to the Prospectus in this Exhibit A-1 include any supplements thereto
at the Closing Date.
(a) Each of the Partnership and the Company's subsidiaries has been duly
incorporated, organized or formed and is validly existing as a corporation,
trust, limited liability company or partnership, as applicable, in good standing
under the laws of the jurisdiction in which it is incorporated, organized or
formed. Except where the failure to so qualify or to be in good standing, singly
or collectively, would not result in a Material Adverse Change, each of the
Company, the Partnership and the Company's subsidiaries is duly qualified and in
good standing as a foreign entity in each jurisdiction where its ownership or
lease of property or the conduct of its business requires such qualification;
(b) Each of the Partnership and the Company's subsidiaries has all
requisite corporate, limited liability company or partnership power and
authority to own and lease its assets and properties and conduct its business as
now being conducted and as described in the Registration Statement and
Prospectus and, with respect to the Partnership, to enter into, deliver and
perform this Agreement. The Company is the sole general partner of the
Partnership;
(c) The description of the capital stock of the Company in the Prospectus
meets the requirements of Item 9 of Form S-3 under the Act; other than statutory
rights which may exist under the laws of the State of Maryland (with respect to
which such counsel need not make any statement), the holders of outstanding
shares of capital stock of the Company are not entitled to any statutory or, to
the best knowledge of counsel, contractual preemptive or other rights to
subscribe for the Shares; except as set forth in the Prospectus, to the best of
such counsel's knowledge, no options, warrants or other rights to purchase,
agreements or other obligations to issue, or rights to convert any obligations
into or exchange any securities for, shares of capital stock of or ownership
interests in the Company are outstanding; and, to the best of such counsel's
knowledge, no person or entity has a right to participate in the registration
under the Act of the Shares pursuant to the Registration Statement;
(d) All of the outstanding equity interests of each subsidiary have been
duly and validly authorized and issued and are fully paid and nonassessable,
were not issued and are not owned or held in violation of any preemptive rights,
and, except as otherwise set forth in the Prospectus, all outstanding equity
interests of the subsidiaries are owned of
Exhibit A-1-1
record by the Company either directly or through subsidiaries and, to the best
of such counsel's knowledge, free of any security interest, claim, lien or
encumbrance. The equity interests in the Partnership have been issued, offered
and, to the best of such counsel's knowledge, sold in compliance with all
applicable laws, including, without limitation, federal and state securities
laws;
(e) This Agreement has been duly and validly authorized, executed and
delivered by the Partnership and constitutes the legal, valid and binding
obligation of the Partnership enforceable against the Partnership in accordance
with its terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally
or by general principles of equity;
(f) Neither the execution, delivery, and performance of this Agreement nor
the consummation of any other of the transactions herein contemplated nor the
fulfillment of the terms hereof by the Company or the Partnership will conflict
with or, result in a breach or violation of (A) the respective charter,
declaration of trust, by-laws, partnership agreement, operating agreement,
limited liability company certificate or certificate of limited partnership of
the Partnership or any subsidiary; (B) to the best of such counsel's knowledge,
the terms of any material indenture, contract, lease, mortgage, deed of trust,
note agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which the Company or any of its subsidiaries is a
party or bound or to which its or their property is subject; or (C) any statute,
law, rule, regulation, judgment, order or decree applicable to the Company's
subsidiaries of any court, regulatory body, administrative agency, governmental
body, arbitrator or other authority having jurisdiction over the Company (except
those in the State of Maryland) or its subsidiaries or any of its or their
properties or, to the best of such counsel's knowledge, result in the creation
or imposition of any lien, charge, claim or encumbrance upon any property or
asset of the Company or any subsidiary;
(g) No consent, approval, authorization, order, license, certificate,
permit, registration, designation or filing is required for the execution,
delivery and performance of this Agreement by the Company (other than as may
arise under the laws of the State of Maryland with respect to which such counsel
need not make any statement) or the Partnership or the consummation of the
transactions contemplated hereby, except such as have been obtained under the
Act and such as may be required under state or foreign blue sky laws in
connection with the purchase and distribution of the Shares by the Underwriter
in the manner contemplated in this Agreement and in the Prospectus;
(h) To the best of such counsel's knowledge, there is no pending or
threatened action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company or any of its
subsidiaries or its or their property which, individually or in the aggregate,
might have a Material Adverse Change, or might materially and adversely affect
the consummation of this Agreement or which are required to be disclosed in the
Registration Statement or the Prospectus that are not so disclosed, and there is
no contract, lease or other document, or statute, rule or regulation,
Exhibit A-1-2
of a character required to be described in the Registration Statement or
Prospectus, or to be filed as an exhibit thereto, which is not described or
filed as required; and the statements included or incorporated by reference in
the Prospectus under the headings "Risk Factors," "Our Company," "Restrictions
on Transfers of Capital Shares and Anti-Takeover Provisions," "Federal Income
Tax Considerations" and "Description of Our Common Shares" (other than relating
to matters of Maryland law or to the Declaration of Trust of the Company with
respect to which such counsel need not make any statement) insofar as such
statements constitute summaries of the legal matters, documents or proceedings
referred to therein has been reviewed by such counsel, are correct in all
material respects and the discussion thereunder does not omit any material
provisions with respect to the matters covered and fairly presents the
information called for with respect to such legal matters, documents and
proceedings and fairly summarizes the matters therein described;
(i) The Registration Statement has become effective under the Act; any
required filing of the Prospectus, and any supplements thereto, pursuant to Rule
424(b) has been made in the manner and within the time period required by Rule
424(b); to the knowledge (based upon oral advise from the Commission) of such
counsel, no stop order suspending the effectiveness of the Registration
Statement has been issued, no proceedings for that purpose have been instituted
or threatened and, to the best of such counsel's knowledge, the Registration
Statement and the Prospectus (other than the financial statements, notes and
supporting schedules and other financial and statistical information contained
therein, as to which such counsel need express no opinion) comply as to form in
all material respects with the applicable disclosure, form and other
requirements of the Securities Act and the rules thereunder; and the
Incorporated Documents (other than the financial statements, notes and
supporting schedules and other financial and statistical information contained
therein, as to which such counsel need express no opinion) at the time they
became effective or were filed complied as to form in all material respects with
the Exchange Act and the rules and regulations thereunder; the Offered Shares
all have been duly registered under the Securities Act;
(j) The Offered Shares have been listed and admitted and authorized for
trading on the New York Stock Exchange subject to notice of issuance;
(k) The Company is not, and after giving effect to the offering and sale of
the Offered Shares and the application of the proceeds thereof as described in
the Prospectus, will not be an "investment company" or a company "controlled" by
an "investment company" within the meaning of the 1940 Act; and
(l) Commencing with its taxable year ended December 31, 1996, the Company
has been organized and operated in conformity with the requirements for
qualification as a real estate investment trust pursuant to Sections 856 through
860 of the Code, and the Company's current and proposed method of operation will
enable it to continue to meet the requirements for qualification and taxation as
a real estate investment trust under the Code.
Exhibit A-1-3
(m) The Partnership and each subsidiary limited company or partnership will
be treated for federal income tax purposes as partnerships and not as
associations taxable as corporations or as publicly traded partnerships.
To the extent deemed advisable by such counsel, they may rely as to matters of
fact on certificates of responsible officers of the Company and public officials
on the opinion of Berliner, Xxxxxxxx & Xxxx L.L.P. as to matters of Maryland law
and on the opinions of other counsel satisfactory to the Underwriter as to
matters which are governed by laws other than the laws of New York, Delaware or
the Federal laws of the United States; provided that ____________ and such other
counsel shall state that, in their opinion, the Underwriter and they are
justified in relying on such other opinions. Copies of such certificates and
other opinions shall be furnished to the Underwriter and counsel for the
Underwriter. Such other opinions shall also permit counsel for the Underwriter
to rely thereon.
In addition, such counsel shall state that such counsel has participated in
conferences with officers and other representatives of the Company,
representatives of the Underwriter and representatives of the independent
certified public accountants of the Company, at which conferences the contents
of the Registration Statement and the Prospectus and related matters were
discussed and, although such counsel is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement and the Prospectus (except as specified
in the foregoing opinion), on the basis of the foregoing, no facts have come to
the attention of such counsel which lead such counsel to believe that the
Registration Statement at the time it became effective and on each Closing Date
(except with respect to the financial statements and notes and schedules thereto
and other financial data, as to which such counsel need express no belief and
after giving effect to any changes incorporated pursuant to Section 430A under
the Act) contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus as amended or supplemented
(except with respect to the financial statements, notes and schedules thereto
and other financial data, as to which such counsel need make no statement) on
the date thereof and on each Closing Date contained any untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
Exhibit X-0-0
XXXXXXX X-0
-----------
Opinion of Issuer Counsel (Maryland)
Opinion of counsel for the Company to be delivered pursuant to Section 5(d) of
the Underwriting Agreement.
For the purpose of this opinion, unless otherwise noted, the term "subsidiary"
or "subsidiaries" includes the Partnership.
References to the Prospectus in this Exhibit A-2 include any supplements thereto
at the Closing Date.
(a) The Company has been duly incorporated, organized or formed and is
validly existing as a real estate investment trust, in good standing under the
laws of Maryland;
(b) The Company has all requisite corporate power and authority to own and
lease its assets and properties and conduct its business as now being conducted
and as described in the Registration Statement and Prospectus and, to enter
into, deliver and perform this Agreement. The Company is the sole general
partner of the Partnership;
(c) The Company's authorized equity capitalization is as set forth in the
Prospectus; the Common Shares of the Company conform in all material respects to
the description thereof contained in the Prospectus; the outstanding Common
Shares have been duly and validly authorized and issued and are fully paid and
nonassessable; the Common Shares to be delivered to and paid for by the
Underwriter pursuant to this Agreement, are fully paid and nonassessable; the
certificates for the Common Shares are in valid and sufficient form; the holders
of outstanding Common Shares of the Company are not entitled to any statutory
or, to the best knowledge of counsel, contractual preemptive or other rights to
subscribe for the Common Shares;
(d) Each of this Agreement and the respective Custody Agreements has been
duly and validly authorized, executed and delivered by the Company and
constitutes the legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally or by general principles of equity;
(e) Neither the execution, delivery, and performance of this Agreement nor
the consummation of any other of the transactions herein contemplated nor the
fulfillment of the terms hereof by the Company will conflict with or, result in
a breach or violation of the declaration of trust or by-laws of the Company or
any statute, law, rule, regulation, judgment, order or decree applicable to the
Company or its subsidiaries of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority of the State of
Maryland;
Exhibit A-2-1
(f) With regard to any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority of the State of Maryland, no
consent, approval, authorization, order, license, certificate, permit,
registration, designation or filing is required for the execution, delivery and
performance of this Agreement by the Company or the consummation of the
transactions contemplated hereby, except such as have been obtained;
(g) To the knowledge of such counsel, there is no pending or threatened
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator in the State of Maryland involving the
Company or any of its subsidiaries or its or their property which, individually
or in the aggregate, might affect the consummation of this Agreement; and
(h) The statements included or incorporated by reference in the Prospectus
under the headings "Risk Factors," "Our Company," "Restrictions on Transfers of
Capital Shares and Anti-Takeover Provisions," and "Description of Our Common
Shares" insofar as such statements constitute summaries of Maryland law,
documents governed by Maryland law or proceedings under Maryland law referred to
therein have been reviewed by such counsel, are correct in all material respects
and the discussion thereunder does not omit any material provisions with respect
to the matters covered and fairly presents the information called for with
respect to such legal matters, documents and proceedings and fairly summarizes
the matters therein described.
To the extent deemed advisable by such counsel, they may rely as to matters of
fact on certificates of responsible officers of the Company and public
officials; provided that ____________ and such other counsel shall state that,
in their opinion, the Underwriter and they are justified in relying on such
other opinions. Copies of such certificates and other opinions shall be
furnished to the Underwriter and counsel for the Underwriter. Such other
opinions shall also permit counsel for the Underwriter to rely thereon. Such
opinion shall state that Hunton & Xxxxxxxx LLP may rely in it as to matters of
Maryland law.
Exhibit A-2-2
EXHIBIT B
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Form of Opinion of Selling Stockholder
The opinion of such counsel pursuant to Section 5(h) shall be rendered to the
Representative at the request of the Company and shall so state therein.
References to the Prospectus in this [Exhibit B] include any supplements thereto
at the Closing Date.
(i) The Underwriting Agreement, dated March ___, 2004 (the
"Underwriting Agreement") and the Custody Agreement (the "Custody
Agreement") and the Powers of Attorney (the "Power of Attorney"), each
dated March ___, 2004 and executed by the Selling Stockholder have been
duly authorized, executed and delivered by or on behalf of, and are valid
and legally binding agreements of, the Selling Stockholder, enforceable in
accordance with their respective terms, except as rights to indemnification
thereunder may be limited by applicable law and except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors' rights
generally or by general equitable principles.
(ii) The execution and delivery by the Selling Stockholder of, and
the performance by the Selling Stockholder of its obligations under, the
Underwriting Agreement, the Custody Agreement and the Power of Attorney
will not contravene or conflict with, result in a breach of, or constitute
a default under, the organizational documents of the Selling Stockholder,
or, to the best of such counsel's knowledge, violate or contravene any
provision of applicable law or regulation, or violate, result in a breach
of or constitute a default under the terms of any other agreement or
instrument to which the Selling Stockholder is a party or by which it is
bound, or any judgment, order or decree applicable to the Selling
Stockholder of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Selling
Stockholder.
(iii) The Selling Stockholder is the record owner of the Common
Shares, has good and valid title to all of the Common Shares which may be
sold by the Selling Stockholder under the Underwriting Agreement and the
Custody Agreement and has the legal right and power, and all authorizations
and approvals required by law and under its organizational documents, if
applicable, to enter into the Underwriting Agreement, the Custody Agreement
and the Power of Attorney, to sell, transfer and deliver all of the Common
Shares which may sold by the Selling Stockholder under the Underwriting
Agreement and to comply with its other obligations under the Underwriting
Agreement and the Custody Agreement, except such as may be required under
state securities or blue sky laws.
(iv) Upon payment for the Common Shares to be sold by the Selling
Stockholder (such Common Shares, the "Subject Common Shares") as provided
Exhibit B-1
in the Underwriting Agreement and pursuant to the Custody Agreement, and an
indication from DTC by book entry that, in the case of each Underwriter,
the Subject Common Shares being purchased by or on behalf of such
Underwriter have been credited to "securities accounts' (as defined in
Section 8-501 of the Uniform Commercial Code as in effect in the State of
New York (the "NY UCC")) of such Underwriter with DTC, under Section 8-501
of the NY UCC, each Underwriter will acquire a valid "security entitlement"
(as defined in Section 8-102 of the NY UCC) to the Subject Common Shares
being so purchased by or on behalf of such Underwriter, and, to the extent
governed by the UCC, no action based on any "adverse claim" (as defined in
Section 8-102 of the NY UCC) to such Subject Common Shares (or security
entitlement with respect thereto) may properly be asserted against such
Underwriter with respect to such security entitlement. For purposes of the
opinion in this paragraph (iv), we have assumed that (a) DTC is a "clearing
corporation" (as defined in Section 8-102 of the NY UCC), (b) neither DTC
nor any Underwriter has notice of any adverse claim (as such phrase is
defined in Section 8-102 of the NY UCC) to the Subject Common Shares, and
(c) the agreement between each Underwriter and DTC pertaining to the
securities accounts of each Underwriter with DTC specifies that it is
governed by the law of the State of New York.
(v) To the best of such counsel's knowledge, no consent, approval,
authorization or other order of, or registration or filing with, any court
or governmental authority or agency, is required for the consummation by
the Selling Stockholder of the transactions contemplated in the
Underwriting Agreement or the Custody Agreement, except as required under
the Securities Act and applicable state securities or blue sky laws.
Exhibit B-2
EXHIBIT C
---------
Form of Lock-Up Letter
Exhibit C
